Public Bill Committee

[Ann Winterton in the Chair]

Clause 24

Harassment

Amendment proposed (this day): 230, in clause 24, page 17, line 26, at beginning insert, Subject to subsections (2A), (2B), (2C) and (2D),.(Dr. Evan Harris.)

Question again proposed, That the amendment be made.

Ann Winterton: I remind the Committee that with this we are discussing the following: amendment 38, in clause 24, page 17, line 27, leave out or and insert and.

Raises the threshold in the definition of harassment in order to mirror the wording of EU Directive 2000/78/EC, Article 2.3.
Amendment 231, in clause 24, page 17, line 29, at end insert
(2A) Subject to subsection (2D) where the protected characteristic is sexual orientation, for the purposes of Part 3 (Services and Public Functions), the purpose or effect is
(a) violating Bs dignity; and
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2B) Where the protected characteristic is sexual orientation or gender re-assignment, for the purposes of Part 6 (Education), the purpose or effect is
(a) violating Bs dignity; and
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2C) Subject to subsection (2D) where the relevant characteristic is religion or belief, for the purposes of Part 3 and Part 6, the purpose or effect is
(a) violating Bs dignity; and
(b) creating an intimidating, hostile, degrading or humiliating environment for B.
(2D) Subsection (2A) and (2C) apply to Part 3 (Services and Public Functions) only where the provision of a service is
(a) carried out by a public authority,
(b) carried out on behalf of a public authority,
(c) carried out under contract to a public authority, or
(d) otherwise carried out in the exercise of a public function..

This amendment extends protection against harassment on grounds of sexual orientation, gender reassignment and religion or belief in relation to part 3 (where exercising a public function) and part 6. Harassment is defined in a more limited way.
Clause stand part.

Vera Baird: Welcome back to the Committee and the debate, Lady Winterton. Amendments 230, 38 and 231 would make various changes to the definition in the applicability of harassment. At the outset, I would like to deal with the question raised by the hon. Member for Oxford, West and Abingdon about why marriage and civil partnerships are excluded, because that point stands aside from the main thrust of the arguments.
We have already rehearsed the fact that the document Discrimination Law Review found little evidence of discrimination to justify the inclusion of marriage or civil partnership in the Bill as a protected strand, and there really is no need to include harassment. The hon. Gentleman also asked why pregnancy and maternity were not protected against harassment, but if a woman was subjected to that, there would be harassment related to her sex in any case, so there is no need to cover it in this provision. I hope that those two side points have been dealt with.
I shall now discuss amendment 38 as its reach is smaller and it is the most easily dealt with. As the hon. Member for Glasgow, East has said, British discrimination law contains a harassment provision. To show harassment, a person must show either that their dignity has been violated by unwanted conduct or that an intimidating, hostile, degrading or offensive environment has been created as a result of something. It is either/orthe disjunctive approach. By contrast, the definition in European equal treatment directives requires both limbsthe conjunctive approach.
It is difficult to see how the two concepts differ in practice. Conduct that violates somebodys dignity will almost always create an offensive environment for that person. Therefore, if there is an extension by our treatment of those two limbs as disjunctive, we regard that as a small extension. That is the first point. The point that I rehearsed with the hon. Member for Oxford, West and Abingdon in an intervention is that our disjunctive approach, which is arguably a touch broader, was introduced to law as long ago as 2000 when the Race Relations Act 1976 was amended to implement the relevant European directive. He gave another example of a different branch of equality law where that disjunctive approach was present.
To use the conjunctive approachthe European approach, which is perhaps slightly narrowerwould be regression. We would be going back from what we have already done and we are not allowed to do that under the principle of non-regression. That is another reason why we cannot implement the proposal.

Evan Harris: As the Solicitor-General will be aware, I agree with her. Such a move would indeed be regression because it would narrow the definition. I want to probe her further on this question as it is relevant to my amendments.
I believe that the conjunctive approach would be a significant narrowing because violation of dignity is a personal and subjective thing. Whatever one thinks of the objective test and the extent of that in the legislation, it is harder for violation of dignity to be dealt with subjectively than it is to deal with the environment question. One can see evidence of an environment and that can be objective, whereas ones own dignity, and whether it has been violated, is much more difficult to judge. I agree that there is a difference, but does the Solicitor-General accept that, on that basis, it might be more than just a slight difference?

Vera Baird: No, I do not think so. It is broader, but not significantly so. It must stay broader, because we cannot regressI, for one, do not want to regress that in any way.
Next, I will deal with the issue of objectivity and subjectivity that the hon. Gentleman raised, as it fits in with amendment 38 and the ones that he tabled. To reassure the hon. Member for Glasgow, East, if we are broader in this respect than is Europe, there is an additional element in our law, which is the objectivity that is required where harassment is not deliberate or intended. That is clear in clause 24(3), which the hon. Member for Oxford, West and Abingdon referred to.
For conduct to be regarded as harassment, one must take into account the factors involved: the perception of the victim, all the other circumstances of the case and, importantly, whether it is reasonable for the conduct to have the effect of harassment according to the definition in clause 24(2).
I want to reassure the hon. Member for Glasgow, Eastthis is on another limbwhose fear is that it is too easy to be harassed, which could restrict in particular religious freedom of speech, which is his interest. He will be reassured to know that that extra part is in there.
Regarding the objectivity of the test, the hon. Gentleman pointed to the fact that the definition of perception in clause 24(3) is couched slightly differently than in the old law, and that is rightwe have tried to make it clearer. As he said, the elements of reasonableness are now separated, which may flag up the issue to some extent, but the important thing is that hypersensitivity cannot be used.
The hon. Gentleman feared that a person who was hypersensitive to a religious problem would say, It is perfectly reasonable for me to say that that is harassment because I am hypersensitive, so the reasonable test is passed. That would make it a subjective reasonableness test, which it is not.

Evan Harris: I welcome the Ministers comments and give more strength to her arm in making the issue clear. This will be helpful. These issues have been subject to debate in the literature and this is a useful opportunity for her to clarify the Governments intention.

Vera Baird: In fact, this is already in domestic law. I am sorry to fumble, but for just one moment I lost the page where the case is set out.

Evan Harris: I think this is useful because, as I understand it, the previous provisions seemed, as I said, to have one paragraph that did not seem clearly to separate the perception of B from the test. In Equal Opportunities Review, among other places, the matter has always been raised as a concerna sensitive person might consider that the reasonableness test relates to them. I am interested to hear what more the Minister can say on that.

Vera Baird: I am grateful to the hon. Gentleman for his intervention. The lesson learnt is not to eat ones lunch while still at the papers, or two pages could get stuck together.
To reassure the hon. Member for Glasgow, East, the test has been set out in a case called Driskel v. Peninsula Business Services Ltd. The judgment said that the facts of a case in which harassment is alleged
may simply disclose hypersensitivity on the part of the applicant to conduct which was reasonably not perceived by the alleged discriminator as being to her detriment... no finding of discrimination can then follow.
What we have done is replicate the current law. The reassurance is helpful to make it clear that although clause 24(3) says that the perceptions of B, the victim, are an important factor, the question whether it is reasonable to regard something as harassment is not for the victim to decideit is an objective test. I hope I have provided reassurance on that aspect.
Amendments 230 and 231 together make up what I am afraid would evolve into a massively complex picture. They would provide protection against harassment on the grounds of sexual orientation and the grounds of religion or belief in the provision of services in exercise of public functions by public authorities. The definition of sexual orientation would be the disjunctive definition.

Evan Harris: The conjunctive.

Vera Baird: Forgive me, the hon. Gentleman is right. So, that would be narrower and it would mean that the complainant had to show that the harassment had both effects that we have already discussed. It would be the same for religion and belief, but removal of the offensive adjective in clause 24(2)(b) would result in the second limb of the test
creating an intimidating, hostile, degrading, humiliating
environment. However, if it was offensive, presumably to the person who was religious, it would not amount to harassment, so there is a higher test for the religious. People could have more of a go at the religious under the hon. Gentlemans provision than they could someone else.

Evan Harris: To make it clear, as I did to the hon. Member for Glasgow, East, the amendment would allow more freedom for the religious to run the risk of offending other people on their religious grounds. It is not simply aimed at giving less protection to the religious. It is a religious-versus-religious thing. As we have recognised in other forms of the law, including incitement to religious hatred, there have to be higher tests all round so that free speech is not interfered with.

Vera Baird: I shall try not to tease the hon. Gentleman again.
The amendment would also extend protection against sexual orientation and gender reassignment harassment to part 6, which is about education. It would use the definition of harassment that requires both limbs and retain the definition of offensive in the second limb of harassment.
In conjunction with another amendment, amendment 231 would extend protection against religion or belief harassment to the education section of the Bill, but using the narrowest definition of harassment and leaving out offensive again. I hope that I have all those right. They present a massively complicated picture, and one of our aims is to simplify the law and not make it almost incomprehensible. We do not want to extend protection for the sake of harmonisation.
The hon. Gentleman is keen on harmonisation. It seems he wants everything to be protected, arguably with the odd exception, but I have promised not to tease him. We do not want to do that. We want to legislate where there is a need for it. We do not see any need for any of those provisions.
There is no question of devaluing sexual orientation or religion or belief. There is no evidence that people are being harassed because of their sexual orientation or religion or belief in situations outside work. We have done a good inquiry on it and we have consulted. We asked for evidence and whether there was a need for express protection against religion or belief and sexual orientation harassment in any of or all the fields of the provision of goods, facilities and services; education; the management or disposal of premises; and the exercise of public functions. Nothing came back that convinced us or even started to persuade us that there was any need for such protection.
I turn to what the hon. Gentleman called captive communities. I understand that, as well as the example of prisoners suggested by the hon. Member for Daventry, but he is really driving at people such as schoolchildren. If someone is harassed in a shop, they can go to another shop, but a child housed in school does not have that freedom of choice. I understand that concern. None the less, we have not had any evidence that there is any difficulty relating to harassment in those captive communities.
Before I come to the question of bullying in schools and homophobic bullying, let us not forget that the public sector equality duty is in place and that that has a role in ensuring that public authoritiesthe service providers and the performers of public functionwill have to give due regard to the need to foster good relations in respect of protected characteristics.
Turning to the hon. Gentlemans significant concern about bullying and harassment in school, and whether these proposals are a way to tackle that, we really do not think there would be any practical benefit. We think thatnot exclusivelymost bullying at schools is pupil to pupil, and what we need to focus on is bullying action plans to stop that occurring, because the relationship between one child and another is not caught by discrimination law. Therefore, introducing that protection would not help anyone to take action against that kind of bullying.
The Department for Children, Schools and Families has put a duty on head teachers to have measures in place to prevent bullying, but the same Department has guidance for schools on dealing with homophobic bullying and it also will produce guidance very soon on tackling transphobic bullying in schools. There is already guidance on bullying in relation to race and religion.
If staff in a school treated children in a way that constituted harassment either because of their belief or because of their sexual orientation, that would be discrimination and it would be caught by the discrimination provisions. We simply do not see a gap to fill.
I hope I have run through this step by step and point by point, and I hope that the hon. Gentleman appreciates that these proposals would produce an enormously complex outcome in any event, but I hope and trust he is satisfied.

Evan Harris: Before the Solicitor-General finishesshe is coming to a summary of her conclusionsI want to deal with the question of schools. I note her point on homophobic bullying and how it is potentially different and could be treated differently from harassment on the basis of sexual orientation by a member of staff. I also note her point that a difference in treatment of a pupil by a member of staff would be discrimination.
I refer the Solicitor-General to the findings of Stonewalls 2009 teachers report, which, in respect of homophobic staff, report that more than two in five secondary school teachers and three in 10 primary school teachers have heard homophobic language or negative remarks about gay people from other school staff. Also, half of gay pupils have heard homophobic remarks from teachers and/or other school staff and 30 per cent. report that adults have been responsible, for instance, for homophobic bullying in their schools. There is then reference to some teachers being homophobic.
Does the Solicitor-General not accept that there is some evidence that does not count as discrimination, because it may not be demonstrated in differential or detrimental treatment, although it shows that there is a staff-to-pupil problem in some attitudes? Indeed, would she count as harassment the idea of children being told that gaynessand their parents, if they are gayis innately or objectively disordered and sinful?

Vera Baird: I do not know of a school that I have come across that talks to its children in that way as a matter of course in any event. What we are looking at is truly legislating where there is a need, not legislating where there is no need.
The hon. Gentleman refers to Stonewall, but Stonewall, as he heard, gave evidence to us only about a week ago to the extent that it has no evidence of the need to extend protection against sexual orientation harassment in schools. We will legislate if it is there, but it is not. Stonewall must be the expert, and it says it is not. I hope he will withdraw his amendment.

Diane Abbott: I have listened carefully to my hon. and learned Friends arguments, and I will support the Government on this matter. However, I want to say a word about the question of homophobic bullying, because I think she perhaps does not take it as seriously as she should.
One has to be a parent of an adolescent child who is in school to understand the reality of homophobic bullying, because to my certain knowledge it occurs in London schools. It is a paradox: for grown-ups it has become less and less acceptable to engage in casual homophobia, but homophobic abuse of the sort that one hears quite normally in primary and secondary schools, certainly in London, is something I never encountered when I was going to school.
Furthermore, physical and verbal homophobic abuse do not occur in a vacuum. They occur in a school society where gay is a common term of abuse. A child can attract the term gay for a range of activities, including wearing their school blazer, putting up their hand in class, doing their homework, admitting to reading a book or taking what is deemed by their peers an undue interest in educational matters. All those things get boys in London schools labelled gay.
Some teachers, perhaps older teachers, see that as a joke, but I believe that it contributes to an atmosphere where boysparticularly working-class and black boysfeel inhibited from exhibiting anything other than what may be described as stereotypical male education-hating behaviour.
Such an atmospherewhere gay is a term of abuse and all sorts of behaviour that we, as middle-aged, liberal, educated people, may consider normalis smeared as gay, which can be difficult for pre-adolescent boys and can lead to specific physical and verbal abuse of individuals. I believe that creates an intolerable atmosphere for many boys and some girls in our schools.
I do not accept my hon. and learned Friends assurances that legislation covers it. It is not my experience, as a parent and someone who goes into schools, that we are doing enough to say that such an atmosphere, such language and such physical abuse are not acceptable. It is all very well to talk about schools having codes of conduct on bullyingevery school in Hackney, North and Stoke Newington has a code of conduct on bullyingbut I cannot tell her that every school does not have a problem with bullying. A code of conduct is a long way from instilling in children a way of behaving.
The other day I read in the newspaper about a little American boy12 years old, good looking and charming, by all accountswho hanged himself because he was consistently abused at his school and accused of being homosexual. We cannot look at the physical act of bullying as an isolated act. We cannot understate the manner in which a toxic, homophobic culture has taken grip in many schools.
The earliest race relations legislation did not result in a wave of prosecutions, but created a climate and signalled societys attitude to such behaviour. Anything that the law can donot just to enable individuals to be prosecuted, but to create a climate and signal our attitude to such a climate in schoolswill help some very frightened and unhappy boys. They exist at this timetoday, as we speak,

Evan Harris: That is a powerful contribution from the hon. Lady. I feel exactly as she does. My consideration of this, and agreeing with her, does not lead me to support the Government, although I am not as natural a supporter of the Government in all matters as she is.

Diane Abbott: That is my Whip.

Evan Harris: From a sedentary position, the hon. Lady tells us that she is being effectively whipped at the moment. I am not saying that that is a form of bullying on any grounds, but I hope it does not continue as it would be a personal tragedy for her and a waste for the House and the media world if she were kept in line more often than she is.
Moving on to a substantive point, as I said, my reading of the situation, given the evidence of harassment in schools on the grounds of sexual orientation, for example, leads me to argue for a change in the law. The fact, if it is the case, that Stonewall does not agree on that is of interest, but the Minister was on stronger ground when she argued that law should be based on the evidence of a mischief and whether the law is an effective way to deal with it.
That is the basis on which I would be prepared to make my stand hereand indeed others, at later stages of consideration of the Billrather than saying that because person X or a particular lobbying organisation does not support a particular proposal, for whatever reason, that should be the end of the matter. Other organisations, such as the Equality Network in Scotland, Schools Out and others, not only recognise the problemas Stonewall, which does excellent work, doesbut have a different prescription for the solution.

Vera Baird: As the hon. Gentleman well knows, we have evidence from all those bodiesI cannot say from the Scottish one, but we have evidence from the others. The contribution from my hon. Friend the Member for Hackney, North and Stoke Newington was immensely touching and very strong. Much of it would not be covered by discrimination law if we agreed to the hon. Gentlemans amendment. With greater understanding now, we appreciate that there is a sizeable problem, but we always have to remember the limitations of what we are doing. This is not the way to solve the problem.

Evan Harris: I do not think there is anybody on the Committee who cannot recognise the problem. I do not doubt the Governments intentions in tackling the wider issuenot just harassment, but pupil-to-pupil bullying and so forth. I have not spent long going over examples this morning or now, but it would be appropriate to do so because we are dealing with specific legislation.
My point is that the case is made on the terms of a mischief. Without changing the culture and training and without procedures being put in place, legislation is never sufficient on its own, but leaving a gap uncovered sends the message to the providers of servicesincluding schoolsthat this sort of bullying and harassment is not as serious as other forms, such as racial harassment and bullying. That message relates not to the substance, but to whether there is a legal obligation. In fact, this form of bullying is just as serious if not more so, on the basis that it is not always as universally condemned asthank goodnessracial harassment and bullying are. I accept the Governments point about the single equality duty on public bodies, which, in respect of sexual orientation, is a form of section 28 in reverse. That section was so bad that there is no reason why it should not be reversed. We will debate that later, but the Liberal Democrats do not believe that it is sufficient in these terms.
To respond to a couple of points that the Minister made on the substantive basis of the amendments, I accept that they are complex. I wanted to deal with the issue in an amendment, but it was difficult to do that in the way that the clause is laid out. I am glad that she was able to understand what was covered, and I agree that if something similar ever comes to fruition during the passage of the Bill, we will have to find a neater way of doing it.
The amendment makes the point that the provisions need to be extended. Even if we eliminate a form of discrimination and detriment that occurs in this country, we would not repeal the law even though the mischief has gone. Therefore, one does not have to look too hard, where the principle of the case is made out, for evidence of something that would be covered by a harassment division and not direct discrimination. In her reply, I think that the Minister made it clear that, by definition, not all cases of harassment involve discrimination and, if the comments or conduct do not amount to different treatment per se but just create that environment, they would not be covered.
There is a huge gap in the provision of public services and in schools, as well as for religion and, indeed, sexual orientation. The House will need to come back to this matter. I have clearly not yet persuaded the Minister of that point, but I do not feel that there is any virtue in dividing the Committee on the complex set of amendments that I have tabled. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 ordered to stand part of the Bill.

Clause 25 ordered to stand part of the Bill.

Clause 26

Application of this Part

Mark Harper: I beg to move amendment 10, in clause 26, page 19, line 3, leave out paragraph (a).

Ann Winterton: With this it will be convenient to discuss the following: amendment 196, in clause 26, page 19, line 3, at end insert
, so far as relating to any goods or services which are not provided by or on behalf of a public authority.
Amendment 156, in clause 26, page 19, line 4, leave out paragraph (b).

This amendment extends protection against discrimination in the provisions of goods and services because a person is married or in a civil partnership.
Amendment 197, in clause 26, page 19, line 4, at end insert
(c) sex, except for any goods or services which are provided by or on behalf of a public authority..

Mark Harper: It is a pleasure to see you in the Chair this afternoon, Lady Winterton. I will speak to amendment 10 and my hon. Friend the Member for Weston-super-Mare will hope to catch your eye to speak to amendments 196 and 197.
Amendment 10 is probing. One of the organisations that support the age discrimination legislation applying in whole to those under 18 got very excited and fulsomely supported my amendment. However, it will be disappointed when it finds out that the amendment is intended to probe and to provoke a discussion on the appropriate scope of the Bill and why the Government have taken such decisions.
For the benefit of those who do not have the clause in front of them, it is intended to amend age discrimination provisions and states:
(1) This Part does not apply to the protected characteristic of
(a)age, so far as relating to persons who have not attained the age of 18;.
The amendment would remove that age restriction. I want to make the point to the Minister that a number of outside organisations have highlighted the fact that discrimination against young people takes place. I expect that we will discuss that in more detail when we consider some of the other age discrimination parts of the Bill. Young people may experience discrimination on the basis of their age. With older people, there is what we could callfor the purpose of the debategood discrimination and bad discrimination. We say that young people should and should not do a wide range of things, and we put age limits on when they can and cannot do certain things, based on protecting them.
Providers of other services might also make judgments, aside from those statutory rules, to set age limits that they feel are appropriate, based on the enjoyment of services for other customers. For example, some restaurants and all sorts of other providers have age limits that are not necessarily to do with alcohol supply, but with the age of children in that environment, such as insisting that parents accompany their children.
I understand the sense of some of the issues raised. Some young people are perfectly capable of doing certain things at one age, whereas others of the same age might not be. The difficulty is in setting an objective test, or way of putting that into legislation. That may be why the Government have decided to exclude those under 18 from this part of the Bill. The amendments purpose is to test that and enable the Minister to set out the Governments thinking in more detail, so that it is on the record and we can probe it to see whether any of the examples given by those organisations hold water.

Lynne Featherstone: I rise to support amendment 10. I, too, want to probe the Ministers thinking about the exclusion of under 18s from the protection of the Bill. The commission wishes us to probe the Ministers thinking. It strongly supports the amendment, because it believes that the clause would introduce discrimination to under-18s. It says that the amendment would bring that age group within the full scope of the proposed public sector equality duty set out in clause 143. I share the concerns of some of the organisations that have contacted me.

Mark Harper: May I make it clear that the provision will not exclude young people from the protection of the Bill? It relates just to services and public functions.

Lynne Featherstone: I thank the hon. Gentleman. I am talking about goods and services. He used the example of a restaurant, where people want to be quiet and do not want children running around. Surely, the issue is how a child behaves; the point is that there should be no noise or running around. The clause should not provide a blanket exception for children if we want an inclusive society in which they play a full part. I am sure that many Members have been to continental Europe, where children play more of an integral part in society and behave perfectly well when taken out with adults to restaurants. I want to explore the Ministers thinking on how we are targeting an age group, as opposed to the behaviour of the individual.
On goods and services, indirect discrimination might be experienced by a child. I do not know how many members of the Committee have been into the ladies in Parliament.

Mark Harper: Just the ladies, I suspect.

Lynne Featherstone: I do not know what is in the gents, but the ladies have adult-size hand dryers and child-size hand dryers. That is very good practice, as such thinking incorporates children in the provision of goods and services. That should rightly apply to a range of public services.
One can go on endlessly thinking of instances, but I shall not hold the Committee up too long with my examples, as they are not exceedingly brilliant. Should a car hire firm offer to provide car seats for children, not just because that is good business, but because it is the law? Obviously, that is good practice and good business, but there is an issue about provision, including in the private sector. Restaurants or instructions are probably the most common examples. Should we think about how to write the instructions on the use of a fire extinguisher, so that a child could use it? Although such things are not necessarily common occurrences, they can involve the provision of public services.
I understand the concerns about cumbersome exemptions, but my understanding is that the Australian Age Discrimination Act outlaws age discrimination in a range of areas beyond employment. That Act is able to set out the differences without them becoming cumbersome and burdensome. Young EqualsI am sure that we have all received one of its briefingsis convinced that those concerns can be overcome by robust legislation. I, too, will be interested to hear the Ministers response about how we might improve our inclusion of children into society and the protections in respect of goods and services under this part of the Bill.
Clause 26(1)(b) will remove the exclusion of married and civil partners from the goods and services provisions. Our amendment 156 would put that protection right back. I want to explore whether the Minister really has no evidence whatsoever, even on the hypothetical example of a gay bar or club excluding those who are members of a civil partnership because it does not want to admit couples. The amendment is intended to probe the Ministers thinking, to find out why the Government have removed those two technical characteristics from the provision of goods and services.

John Penrose: It is a pleasure to see you in the Chair, Lady Winterton.
I shall speak to amendments 196 and 197, which I hope are complementary to amendment 10, which was moved by my hon. Friend the Member for Forest of Dean. These amendments serve to round out an earlier stage of the debates that we had on Tuesday, when I asked the Minister for reassurance about whether targeted promotional and marketing activities that involve companies aiming their goods or services at particular groups of people would remain legal, as they always have been. The Minister was able to give some fairly solid and comprehensive reassurances that that was perfectly feasible, providing things were done in a positive rather than a derogatory way.
This pair of amendments seeks to probe the Governments thinking not on market targeting, but on market access. In our debate last Tuesday, we talked about companies such as Club 18-30, which seeks to provide holidays to people of a particular age range, or Saga, which seeks to provide holidays to people at the other end of the age range. We clarified that it was perfectly appropriate to target promotional materials at people in the appropriate age range without fear of legal problems.
The follow-up, perhaps slightly harder, question concerns Club 18-30 targeting its promotional materials at people who are 18 to 30, then getting an application from someone who is 50 to go on one of its holidays. Can the company turn down that person on the basis of age? Equally, if Saga gets an application to go on one of its holidays from someone who is 30, is it appropriatelegalfor the company to turn it down?
This does not just apply to the travel industry. The insurance market has been much discussed. A number of organisations have made submissions saying that evidence shows that it is harder to get some kinds of insurance if one is older. Interestingly, Saga has come up with some additional evidence that, although not all insurance companies provide insurance to people who are at the top end of the age range, there are a number of companies, including Saga, that do. According to Sagas research at least, in well over 90 per cent. of cases, people who had been initially turned down by their normal insurerpresumably because of agewere able to find insurance elsewhere. Therefore, although the individual insurer that they were using might have been unwilling to allow access to their products, or was willing to allow them access only at a much higher price, they were not completely shut out of the insurance market.
The question that we are asking in amendments 196 and 197 is what the Governments thinking is on where to draw the line. That is important because the Government are seeking in later clausesI will not try your patience with them at the moment, Lady Winterton, as we will deal with them laterto acknowledge that there are examples of good discrimination and bad discrimination, to use the terms already used by my hon. Friend. In other words, the Government are seeking to take powers to allow Ministers to declare things to be legal. That causes a great deal of anxiety. Many companies are concerned that their goods and services may be deemed to be illegal until the Minister gets round to declaring them to be okay.
The purpose of the amendments is to take the legal threshold back a step or two to something thatI hope that the Committee will agreeis just anything provided on the basis of public service; surely, that should be provided universally. I also ask the Minister to build up from that foundation and share with us the Governments thinking on what is an acceptable set of principles to distinguish between good and bad differentiation on the grounds of age and sex.
In the previous debates on market targeting, we mentioned insurance companies such as Sheilas Wheels, which aims to provide insurance to women. If Sheilas Wheels refused to give me insurance because I am male, would that be illegal? What is the Governments thinking about the underlying principles? Other examples were mentioned. Today, I can think of gay clubs that might want to exclude heterosexual people. One might think of gyms that operate women-only classes or sessions. There are lots of examples all round.

Diane Abbott: Some gay clubs have a big problem with drunk, heterosexual women who insist on gaining entry.

John Penrose: I could make many comments, all of which would be wrong. I will therefore not make them. The hon. Lady illustrates the point very well. It is important for us to explore the matter. I hope that the Government can illustrate some of the principles that they seek to apply.
The Conservative party would like to make a couple of points to get the debate under way. It is clear that there are examples of characteristics that, although they may closely track age, could be a legitimate ground for differentiation. In some cases, insurance is a good example, because the risk for drivers insurance correlates quite closely with age. Incidentally, it does not just rise inexorably with age. It tends to start off very high for people who have just got their driving licence in their late teens. It then drops, and when we are all getting on a bit, it starts to rise towards the higher age range.
Interestingly, insurance companies that specialise in the area point out that, although the risk per mile travelled may go up as the miles travelled by people who are in the 70s, 80s and 90s tend to fall steadily, the combined risk may still be comparatively low. But that is a clear example of a goods or service where it may be perfectly legitimate to differentiate on the basis of age, as there is a genuine and evidenced example of changing riskinsurance is, by definition, all about risk. We need to have a view on that and understand it. Equally, I am sure that Sheilas Wheels and others would argue that women drivers have different risk profiles from men. That is the basis of a lot of its business and allows it to carve out a profitable one.
It is vital to get such matters on the record, if we can, which is why I am inviting the Solicitor-General to expand on them. The wording of our two amendments is less important than giving such an opportunity to the hon. and learned Lady. The amendments would merely take the basic level of law back to that of providing public services. All members of the Committee accept that, by and large, public services should be provided to everyone. It is hard to think of one that should not be provided to elderly people, but only to young people. For example, we want medical care provided across all age groups. That is a convenient peg, a starting point or a foundation stone on which I invite the hon. and learned Lady to construct her tower of ideas and principles with which I hope we can reassure several companies.
The danger of saying that certain issues will become illegal unless and until the Solicitor-General decides that they are not and uses some of the powers in later parts of the Bill, is that enormous uncertainty will be created in the minds of investors, management, staff and potential customers of many of the companies whose businesses could be affected. Depending on the hon. and learned Ladys response, additional amendments might be tabled later in our proceedings.

Vera Baird: Let me consider first the age discrimination element in respect of children under amendments 10 and 196. Amendment 10 would extend the ban on age discrimination by those providing services and public functions to include children under the age of 18. It would, therefore, generally require service providers and those exercising public functions to treat children of different ages in the same way as each other and in the same way as adults. Different treatment could only avoid being unlawful discrimination if it was covered by an exception or if it was objectively justified as a proportionate means of meeting a legitimate aim.
Amendment 196 is more narrow. The scope of the ban would extend to children only in respect of goods and services provided by, and on behalf of, public bodies. Overall, the purpose of the Bill is to provide protection against discrimination and ensure equal opportunities. Children will be protected extensively, and it is important to make it clear that they will be protected against discrimination on the grounds of race, disability, sex, religion or belief, sexual orientation and gender reassignment, and against harassment because of disability, race and sex.
The Government have clearly put a lot of effort into considering whether they should extend age discrimination, particularly in services and public functions, to the under-18s. We concluded that there are better ways in which to tackle problems that children and young people face. Childrens organisations have presented a lot of examples of services in which the needs of particular children or groups of children do not always seem to be recognised or prioritised. For example, they say that young carers might be overlooked, when their needs are being considered, or young peoples access to public space not given enough weight in planning decisions. There are also a lot of anecdotal examples of children not being treated well.
We take such problems very seriously, but we do not consider that age discrimination legislation is the best way to deal with them. Discrimination law is not an appropriate way to resolve priorities of resource allocation or better ways of using the resources in childrens services.
Although no one has asked me to, I should like to take the opportunity to pay particular attention to children who are carers. Clause 26(1)(a)this seems almost like an exception, but it is how the Bill works and it is a good thinghas the effect that children who are carers will benefit from the association protection by reference to the person for whom they are caring. When an under-18 is caring for a disabled person, he or she will be equally entitled to protection in respect of access to, and supply of, goods, facilities and services on account of association with that disabled person, as any adult carer. A child who is caring for an older person will also be protected from discrimination by association with that older person, despite the child not coming within the age discrimination ban. That is an important point, and will reassure the carer community. Whether or not they had already thought about the problem, I am sure that they would have done so in due course. I hope that that is clear.
Returning to the generality of younger people, we feel that extending age discrimination to children as children could have negative consequences. The analogy made by the hon. Member for Forest of Dean about age discrimination at the top end, makes that point. Broadly speaking, no age discrimination should be allowed at the top end. However, there will be a need for an exception, so that pensioners in Redcar can continue to have cheap fish and chips from private providers, for example, or so that they can continue to have their equivalent of the freedom pass from public service providers. I am sure that there will be exceptions in due course of the kind that the hon. Gentleman mentioned in relation to insurance. Sometimes, there will be an actuarial justification for an increase in premium or whatever. We will have a body of outlawed discrimination with some exceptions.
With children, it works the other way round. Nobody would see any need to distinguish between the way they treat a 72-year-old and a 77-year-old, but they would want to treat a two-year-old and a seven-year-old quite differently. They would not want to have to objectively justify that treatment on each occasion because it was unlawful age discrimination. Obviously there would be differences. If one was providing play for those two age groups, there would be differences in levels of supervision, kinds of play, educational inputs, health protection and so on.
In a sense, the emphasis goes the other way with young people. There are more exceptions, rather than a core of age discrimination legislation that one is able to point to in order to say that something should be banned. Justifiable different age-based treatment of children is widespread, and is fundamental to the provision of services to meet childrens needs at all ages. It would be fabulously complex to try to provide exceptions in the law to ensure that all that kind of treatment was exempted with clarity, and the provisions of those exceptions would be very important.
One can defend the different treatment of children of different ages on the grounds that it is objectively justified. That is fine, but it is a long process to have to go through, and the fear is that it would be massively complex, with the negative possibilities that I have mentioned. Certainly in the private sector, having to go through that entire process would be likely to have a chilling effect on the provision of services for children.
Such a law could also undermine the equality duty, which we will come to in due course. As everyone knows, public bodies will consider and address the age-specific needs of young people under that duty. A playground for toddlers, an adventure playground for older children or a reserved area for teenagers to congregate in, could all be part of a plan to meet the needs of young people under the equality duty. The concern that such things might have to be justified against a challenge by those who fall above the age limit for the toddler park or below the age limit for the teenage place, might discourage authorities from providing such facilities. We do not want them to be discouraged; we want them to be actively encouraged and that is what the public sector duty is about. If the measure is applied only to public bodies, clearly it would not have the same chilling effect on the private sector. Amendment 196 is narrower, but we still do not think that it would be an effective way to improve childrens lives. We still fear that public provision might be chilled.
We do not believe such a proposal to be the way forward, although we do not slight children or treat them as less valuable than adults. The Bill has an important contribution to make to the quality of childrens lives and it generally protects children from discrimination in the same way as adults. The new equality duty will support a better understanding of the services that are needed by children of all ages. That sets out as best I can why the Government decided against the amendment.
I turn now to amendment 156, which concerns extending protection from discrimination to marriage and civil partnerships with regard to the provision of services and the exercise of public functions. The same argumentthat there is no evidence that such protection is neededapplies. I have already said several times that there is not much evidence that any protection is needed on the grounds of marriage or civil partnership. Although there is still some residual discrimination to be challenged in the employment field, we found no evidence of it anywhere else. We shall outlaw only what we need to, and no more.
Amendment 197 is clearly not intended at face value, because it would limit the application of part 3 of the Billon services provided by, or on behalf of, public authoritiesin so far as it relates to sex. Private sector organisations would therefore be free to discriminate against women, men, or whatever, which has been unlawful since 1975talk about regression. I know that the amendment has been put forward to test the points that the hon. Member for Weston-super-Mare has raised and that it will not be pressed.
Amendment 197 is a probing amendment to draw out debate on how the Bill deals with services that are justifiably delivered on a restricted basis to people who have a particular protected characteristic. The starting point must be that limiting access to particular goods or services on the basis of a protected characteristicfor example, sexis, as a general rule, unlawful. However, there are situations in which businesses and public sector organisations might legitimately wish to restrict access to a service to people of a particular sex, and the Bill provides for that in a number of ways. First, only women, or only men, might need the service. For instance, it is obviously not discriminatory for the NHS to provide cervical cancer screening to women. That is expressly provided for in paragraph 24 of schedule 3.
It is also acceptable for a service provider to continue to provide a service in such a way that is commonly used only by people with a particular characteristic. That is addressed in paragraph 27 of schedule 3. For example, men usually use barbers, while women usually use hairdressers, although I think that is rather an old-fashioned example. Unisex salons are increasingly commonit says unisex saloons on my note, which is an encouraging thought for a drink later on. Barbers are not required to offer female hairdressing services. However, if a woman were to ask for a grade 2 haircut, which I assume is very short, the barber could not refuse to do that for her, unless there was some reason, or it was impractical to do so.
Secondly, a business can apply a restriction which adversely impacts on those of a particular sex and so is potentially indirectly discriminatory, but which can objectively be justified as a proportionate means of achieving a legitimate aim. For instance, if a baby group met only during the daytime, on a weekday, fathers, who have limited paternity leave and who, statistically, are more likely to be working full time, would be likely to find it more difficult to go to that group with their children. That would put them at a disadvantage compared with mothers. However, such a practice could be justified for various reasons, including demand, need, staffing and costs. Accordingly, the limited access for men, so long as it was justified objectively, would not amount to indirect discrimination.

John Penrose: The Minister is giving a full explanation. Can I test her with another example, to ascertain whether I have understood the provision correctly? I keep on referring to Saga, because they have been active in providing examples for us. From what I understand so far, if a Saga holiday was being advertised and a 30-year-old applied to go on it, under the Ministers first example, Saga would not be able to say, No, you cant come. However, under her second example, it might be able to say, No, you cant come because we operate a system where all the booze is free and there is an open bar policy on our holiday. That statement would be based on a set of assumptions, based on evidence that people in the older age range tend to drink much less than those in the younger age range, and that would materially impact on the costs of providing the holiday. Is that the sort of example that she feels would fall within the rules that she has just laid out?

Vera Baird: That is a weird example. If the hon. Gentleman has the brochure for holidays where the booze is all free, we will distribute it among participants in the Committee. I know what he means: if there is some justifiable reason why the whole costing process, the availability of accommodation or, in some cases, the fact that Saga sometimes has clergy going along, is worked out on the basis of an age group, it might be justified. Rather than picking on examples and defining how I think they will play out, it is better to allow the imminent consultation to deal with that.
None the less, let me clarify as best I can, at the hon. Gentlemans invitation, the other ways in which it is possible to have single-sex services perfectly legitimately. Privacy and decency, or biological differences, might justify single-sex services or facilities. The Sex Discrimination Act 1975 specified services such as refuges for victims of domestic violence: generally, women would want to go to a refuge that was women-only if they were escaping from a violent man; men, because there are male victims of domestic violence, would probably want to go to some special provision. But one can see the point of that.
Another example is referral centres for victims of sexual assaultagain, such people tend to want to be in their own gender company. Other such services are: health care treatments that affect one sex, such as treatments for ovarian cancer or prostate cancer; the probation service; women offender reduction plans; and projects that provide support for fathers. Since services funded for parents of both sexes are taken up significantly more by mothers than fathers, specific services for fathers could be provided to meet that need.
The exemptions in part 6 of schedule 3, about separate and single-sex services, set out circumstances in which either separate services for the sexes, or single-sex services, can be lawfully provided. In every case, the limited provision of such a service must be a proportionate means of achieving a legitimate aim. Therefore, such services should meet a legitimate need, and they could be open to challenge if they do not.
Finally, the restriction could be aimed at enabling those of a particular sex to overcome a particular disadvantage, or to rectify their disproportionately low involvement in a particular activity. We will discuss that later when we come to part 11 of the Bill, but I refer to the positive action provisions. An adult education class about car maintenance that was limited to womenI do not think up these examplesmight be lawful, although I would not go on it. Furthermorethis is the weaker example, I thinkit would be entirely lawful under positive action provisions to launch a cookery class limited to men, perhaps because there is a disproportionate presence of women in cookery. I am not sure that that is a good example, but I think the hon. Member for Forest of Dean can see the point. I guess that the car maintenance example is the best.
If participation in an activity is disproportionately low, a provider can target a specific group to raise its participation. We will consider that in more detail under part 11 of the Bill, but it is appropriate to mention now as one of a list of ways in which single-sex and single-strand services can be supplied. One can make similar points about restricting services on the basis of other characteristics. For example, a local sports club that did not have many disabled members might want to have an open day aimed exclusively at disabled people.
The other strands have specific exceptions as well. The consultation about age is important in crystallising as best we canconsensually, we hope, among service providers and age campaignersall the possible exceptions that are likely to be necessary regarding the prohibition of age discrimination in the provision of goods and services under clause 190.

John Penrose: The Solicitor-General is being very helpful. In her closing remarks, will she make some comment about the Governments expected timetable for developing the principles for the age-related discrimination exceptions? She has elaborated an impressive, carefully-thought-through and fairly sophisticated set of exceptions for many of the other strands of discriminationthose that have been around for some timebut we are much further back in the process on age, as I think she was saying. It is important that companies making hitherto legitimate business-based decisions and distinctions based on age know that they will not have to reconstruct their business models completely at an early point. It would be to the advantage of everyone, particularly the companies and their customers, if the Government clarified those principles at an early stage, ideally before Report or, in any event, soon thereafter. That would reduce the level of commercial uncertainty and uncertainty for the staff and customers of those firms.

Vera Baird: I understand the hon. Gentlemans point and we will be consulting on that. Let me find the timetable so that I can explain as clearly as possible. The consultation document is almost complete, so it will be published soonthis week or next week, I hope. The consultation will continue until the end of September. We are looking to bring regulations to this House in 2010 and are aiming to enact the law in 2012. The consultation process will iron out those problems because many business suppliers and the age charities will be involved.

John Penrose: I thank the Solicitor-General for that clarification. For the record, may I make sure that I heard her correctlythat regulations to define the exceptions required to continue trading will be brought in before Royal Assent, so that companies trading on the basis of age do not subsequently discover that their practices are technically illegal?

Vera Baird: We do not have to bring everything in on Royal Assent or immediately afterwards. We could make sure that the timing is correct so that we do not put anyone at a disadvantage. We will be consulting on regulations in 2010, so the consultation as a wholewhat is in, what is out, what is a legitimate example and what is notstarts now and continues until September. We will consult on regulations when we have crystallised where they should be. This is a new areathe hon. Gentleman has made that point clearlyand it is a complex area. It is easy to get things wrong and to disadvantage the people we mean to help. We will consult on the regulations again in 2010 and aim to bring in the law in 2012. We will have it all complete before anybody can be put at a disadvantage by being, as the hon. Gentleman put it, technically unlawful.
We are discussing everything other than health and social care. The NHS and the social care sector have their own process in place; a pilot is already under way in the south-west to see how the NHS will cope, how much the proposal will cost, and how it will work with age discrimination law. That is running parallel to the passage of the Bill and we hope to have a report on that by October this year. It should point the way forward for the NHS. That is not what the hon. Gentleman refers to, but I should make it clear that there is a different process in place.
We will definitely consult on whether the holidays targeted at a particular age group by Saga should be allowed to continue under an exception. The provisions in part 3 are intended to ensure that, as the hon. Gentleman said, people receive fair and unbiased treatment when they buy goods and services.
I am sorry for giving such a lengthy response. Age discrimination, children and the question of how the provisions relate to the supply of goods and services are key areas. I hope that Conservative Members are satisfied, and that the amendment will be withdrawn.

Mark Harper: I am grateful for the explanations given by the Solicitor-General. Amendment 10, which I spoke to, was essentially a probing amendment. She has clearly laid out the Governments thinking, which is broadly similar to our own, but it is good to get on record why the provisions in part 3 exclude those under the age of 18. She gave a comprehensive reply to the amendments to which my hon. Friend the Member for Weston-super-Mare spoke, making clear the details of the consultation and the fact that the relevant part of the Bill will not be brought into force before the regulations making clear the exceptions are in place. Given those assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 60, in clause 26, page 19, line 8, leave out subsection (3).(The Solicitor-General.)
This amendment is consequential on amendment 90.

Clause 26, as amended, ordered to stand part of the Bill.

Clause 27

Provision of services, etc.

Evan Harris: I beg to move amendment 232, in clause 27, page 20, line 12, at end insert
(8A) Subsection 8 applies only where the provision of the service is not
(a) carried out by a public authority;
(b) carried out on behalf of a public authority;
(c) carried out under contract to a public authority, or
(d) otherwise carried out in the exercise of a public function..

This amendment extends protection against harassment on grounds of sexual orientation and religion or belief in relation to part 3 (where exercising a public function). Harassment is defined in a more limited way.
I discussed the amendment earlier, so I will not repeat the justification in respect of harassment. It was important to separate out public services from other services, because that is what I wanted the harassment provisions to cover. But it is useful to take the opportunity to raise a slightly separate point raised by the amendment: why do the Government not propose a separation between public services and non-public services, and a definition of public services? I will explain what I mean by that.
The justification for proposed new paragraph (a) was dealt with under the harassment clause, so I will not repeat that. But the argument that there should be a specific definition of public services and that they should be separated out from other servicescommercially delivered servicesis an important point that the amendment probes.
There is a long-running issue about what exactly a public service is. When it is delivered by a commercial organisation under contract to a public authority, or where its nature is public but it is privately purchased, or where its nature might be private or public but it is publicly purchased, as in care homes, there is a long-running controversy about how we can get our courts to understand that the intention in the Human Rights Act 1998 was to ensure wider coverage.
The worry is that simply referring to services and the exercise of a public function will not cover everything that we need to cover. Although the Government might not see the need to make such a distinction between public services and others generally, when it comes to schedule 23 some of us will argue that, for example, the exemptions provided for religious organisations to discriminate in the delivery of services ought not to exist to the same extent when delivering public services. I will not talk about those now, because we will debate them later. But there is an argument for a separation between public services and non-public services.
Even if the Solicitor-General does not see the need for the amendment, and does not see the need to have the demarcation where I might wish to see it, I would be grateful if she said whether her understanding is that services carried out in the exercise of a public function should also extend to categories under proposed new paragraphs (a), (b) and (c) in my amendment. We are grateful for the Governments efforts in tackling the problem of the YL case in health care. However, does the Solicitor-General believe that the same should apply by extension in discrimination law? In many instances, article 14 cases will be brought in relation to the meeting of other rights under the Human Rights Act 1998. It will be useful for equality law to recognise the same reach of the public services obligation as human rights law.
The amendment is purely probing at this point, given that half of its justification is gone. I hope it gives the Government the opportunity to set out their thinking, as it isI speak as a member of the Joint Committee on Human Rightsa particular interest, or obsession, as some might say, of that Committee, to ensure that public services are covered where they need to be.

Mark Harper: I have one question for the Minister, to clarify something, which I hope will save us some time later. I want to check that education and provision of schools are included in the provision of services. Given that clause 27 states:
A duty to make reasonable adjustments applies to...a service-provider,
will the duty apply to schools? Will the duty in clause 19(5), relating to the need to provide auxiliary aid also apply to schools? I ask that rather convoluted question because there is a concern about schedule 13. An organisation has asked us to table an amendment to that schedule because it says that the requirement for a school to provide auxiliary aid does not currently apply. From reading clauses 19 and 27, it seems that schools would have to do so. If that is the case, we will not need to trouble ourselves with an amendment to schedule 13, which will save us some time later on. I would be most grateful if the Minister could answer my question.

Vera Baird: The hon. Member for Oxford, West and Abingdon said this morning that he would not pursue the matter because he thought it was tied up in the earlier discussion about harassment. He has managed to have a debate about an amendment that would add harassment to the Bill, and not at all about public authority and its definition. There is a time in the Bill when we will talk about how we define public authority and public functions, but it is not now. I will deal with the issues when the time is right. It is up to the hon. Gentleman either to withdraw the amendment or press it to a vote.
We have not made the distinction between public and private services in the primary legislation on race relations and sex discrimination. Both are covered in the same way in the Bill.
On schools, I hope that the hon. Member for Forest of Dean finds it a satisfactory answer when I say we need to go to part 6, where education is completely covered. If he does not, I will write to him about the actual point he raises.

Mark Harper: I checked part 6, but it did not seem to exclude earlier parts of the Bill. It will be helpful if the Minister can clarify whether clauses 19 and 27 apply to schools. If they do not, and she then writes to us, we can have a discussion when we get to part 6. I wanted to check, because if the clauses do apply to schools, it will be helpful when we are thinking about tabling amendments. I think the Minister may now be in a position to answer.

Vera Baird: Clause 26(2) states:
This Part does not apply to discrimination, harassment or victimisation...that is prohibited by Part 4 (premises), 5 (work) or 6 (education).
We need to travel on to part 6 to look at issues around education.

Evan Harris: I plead partly guilty to the charges laid down by the Minister. I said that I thought that amendment 232 could have been grouped with the other amendments to clause 24. I think that you and your colleagues, Lady Winterton, chose to group it separately because it raised separate issues, such as the distinction between private and public servicesthe Minister has made no comment on thatand the definition of a public authority. In respect of the last of those, I am happy to have the debate whenever the Minister feels it is appropriate. I would be grateful if she or one of her team could indicate when she feels it is appropriate for the Opposition to raise that issue. I would like to do that when she wantsI have no desperate desire to do it now or out of order. I understand that point.
I regret the Minister stating that the Government are not making a distinction in the Bill between the provision of services privately and the delivery of services of a public nature. That is something that we shall have to debate when we deal with the exceptions, where I believe that there is cause for that distinction to be made. Although feeling half guilty, I make no apology for raising the pointgiven that the amendment was separately grouped in order that I could do sothat there ought to be that distinction. At some point we need to cover the definition of a public authority. The question that comes to mind is if not now, when? We shall work to find out when that might be.
I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 ordered to stand part of the Bill.

Clause 28 ordered to stand part of the Bill.

Clause 29

Interpretation and exceptions

Question proposed, That the clause stand part of the Bill.

Evan Harris: I note that subsection (4) states:
A public function is a function that is a function of a public nature for the purposes of the Human Rights Act 1998.
I may not have caught up with what is going on, but if that is not an opportunity to probe the question of the definition of
a function of a public nature for the purposes of the Human Rights Act 1998,
I do not know what is. It seems to be an open invitation.
I shall not repeat most of what I have already said. Let me give the Committee time to find page 21the explanatory note does not go into the matter in great detail, but it is a real issue. When is
a function of a public nature for the purposes of the Human Rights Act
is a question that has tied up our courts, to an extent the Government and certainly the Joint Committee on Human Rights for a long time. There is a solution in respect of health care, which has been recognised and accepted after a great deal of strugglenot least on the part of the hon. Member for Hendon (Mr. Dismore), who struggled long and hard to find a vehicle to solve that. The matter should be clarified in other areas as well.
For example, there is the question of academies, a delivery of education that their sponsors have argued is not covered by the definition of a public authority, or is differentially covered, depending on what the academies are doing. That is but one example, given the variety of ways in which public services are now deliveredin fact, through private and voluntary organisations in ways that were probably not even considered when the Human Rights Act 1998 was drafted. The issue is substantive and it would be of real benefit for the Government to set out whether they think that where we are with the YL case is where we want to be in equality legislationat least in so far as they are willing to make the distinction between public and non-public functions in equality law, which I accept is not as great as the number of occasions on which I should like to make that distinction.
I have made my point and I look forward to the response. I hope it will be now, but if elsewhere, I am happy to be directed to another part of the building.

Vera Baird: I am sorry, Lady Winterton, if I have been chattering too much.
The clause is interpretative and supplementary to clause 27, setting out meanings of public functionsprovision of a servicelargely replicating the position under existing law but bringing various diverse points together in one place for ease of reference. We have expressly linked the definition of public functions in the Bill to the Human Rights Act to provide, in so far as legislation can, clarity and consistency across the two pieces of legislation. We have also made it clear that the reference to providing a service covers services provided by both public and private organisations. That is important because we do not want to apply different requirements to organisations that are providing essentially the same service, simply because one is publicly funded and the other is not.
We have also used the clausethis does have some relevanceto make clear that the liability is therefore limited to that under part 5, when people are simply arranging for services to be provided by a third party to their employees. They should not then be regarded as a service provider. The employees would be regarded as a section of the public in relation to the third-party provider. The relationship between them and the third-party provider would be governed by this part, but that is not actually central to the point the hon. Member for Oxford, West and Abingdon raised.
Schedule 2 sets out reasonable adjustments and how they apply in relation to providing services and exercising public functions, and schedule 3 sets out exceptions to the prohibitions in the clause. I think at the core of the hon. Gentlemans concerns are public functions in the Human Rights Act, rather than some of the other bits I have referred to. I can tell the hon. Gentleman that concern is not confined to my hon. Friend the Member for Hendon, nor is there a struggle over the issue. I was on the Joint Committee for Human Rights long before he was and we produced a report trying to probe how best to define public functions. I do not think it is putting it too bluntly to say we were slightly taken aback by the way the court defined what a public function was, first of all in the case of Heather v. Leonard Cheshire Foundation and again in the case of YL.
Public functions are not specifically defined in the act, which instead speaks of functions of a public nature. Things that would be considered to be public are law enforcement, immigration and local authority revenue raising and collections. Public authorities provide public services such as leisure and day care centres, as well as carrying out non-service public functions such as law enforcement and revenue collection. If the activity falls into the category of providing a service to the public it will be covered by the provisions making it unlawful to discriminate in the provision of goods, facilities and services. If the activity is not caught under those provisions, it will be captured by the public functions provisions. What is important is that all the activities of public authorities are subject to the prohibition on discrimination unless there is a specific exception. That is helpful as I can be.
Dr. Harrisrose

Vera Baird: The hon. Gentleman is probably going to ask me a question I was just about to answer, but please carry on.

Evan Harris: I would be pleased if I did because I accept that I am sometimes wide of the mark.
In the list the Solicitor-General gave, I am particularly interested in the provision of welfare services for vulnerable people such as the poor, hungry and homeless. Would they be covered even if they were delivered by a private or voluntary organisation, or as part of welfare services but funded privately through charity as part of a public authoritys organisation, in which case, a safety net would apply and the Government would say no it is okay, that exists to look after them? Although the hon. and learned Lady may not always wish to make the same distinction as I do, if certain organisations are delivering those services there is a greater need to protect vulnerable service users than when purely commercial services are provided to paying customers who have more of a choice. That is the area I am seeking to probe.

Vera Baird: Of course, we do not have control over the courts. However, we are of the opinion that private bodies exercising functions of a public nature that are not covered by the service provisions will be subject to the public function provision set out in the Bill. An example would be Group 4 running a prison; it is carrying out a function of a public nature that is not considered to constitute the provision of a service. Accordingly, under the Bill, that activity would be subject to the requirements of non-discrimination in the exercise of a public function which is not a service. That is the broad definition and I hope it is helpful. It is better than it might be.

Evan Harris: I know we should not have this debate now. However, it may help the Minister know my concern: what if a prison service was being run by a religious organisation? There is no injunction, and there is a big exception in schedule 23 for a religious organisation to harass through unwanted proselytisation. I accept that it is not their intention to harass; I do not want to be misunderstoodI am using the term in its legal sense. A religious organisation might want to provide that welfare service only to people of its own religion so, because of the entitlement to discriminate, the issue does bite.
I do not expect the hon. and learned Lady to deal with such matters now because we can deal with them under schedule 23. However, I want her to acknowledge that without the distinction carried through to schedule 23 about what is a service in the exercise of a public functionabout which we are in agreementthere will be the worry that vulnerable people, captive people or those who rely on a service may suffer because of the nature of the organisation that is delivering it. We must bear it in mind that that is not in the control of Parliament at any given stage. It is a point for later, but I wanted to flag it up now.

Vera Baird: On the hon. Gentlemans specific point, I wish to make it clear that welfare provision is considered to be a service. The same protection applies whether the service is provided by a public or a private organisation, but the public body that commissions the service will have to ensure that it is provided to all. That is by way of an addendum. I am sure that we shall examine the relationship between public bodies and contracted-out services later. I hope that the hon. Gentleman is satisfied that it is wider than he probably thought that it was. That being the case, I propose that clause stands part of the Bill.

Question put and agreed to.

Clause 29 accordingly ordered to stand part of the Bill.

Schedule 2 agreed to.

Schedule 3

Services and public functions: exceptions

John Mason: I beg to move amendment 39, in schedule 3, page 150, line 6, leave out paragraph 1.

Parliament is exempt from the ban on discrimination, harassment and victimisation in the exercise of its public functions. This amendment would remove that exemption.

Ann Winterton: With this it will be convenient to discuss the following: amendment 40, in schedule 3, page 150, line 14, leave out paragraph 2.

Parliaments legislative functions are exempt from the ban on discrimination, harassment and victimisation. This amendment would remove that exemption.
Amendment 41, in schedule 6, page 169, line 15, leave out paragraphs 2 and 3.

Political appointments, honours and peerages are exempt from the ban on discriminating against office-holders. this amendment would remove those exemptions.
Amendment 50, in schedule 18, page 216, leave out lines 21 to 24.

The Commons, the Lords, the Scottish Parliament and the Welsh Assembly are exempt from the public sector equality duty. This amendment would remove those exemptions.

John Mason: The amendments are broadly probing provisions. I want to hear the Governments explanation of some of the exemptions under the Bill. Clearly, we all accept that there are areas where it would be inappropriate to apply discrimination lawor to apply it fullybecause it could have harmful side effects. I know that people will sometimes say things like, Equality is an absolute and there can be no exemptions, but the reality is that we can and should apply equality and discrimination law pragmatically and flexibly because different considerations apply in different cases. If we do not, the Bill would be very short indeed and would simply say, Discrimination on these grounds is prohibited, and we would let the courts work it out.
Of course, even the act of selecting which grounds are protected places limits on equality, and clearly people could be discriminated against on a number of issues that are not included. There are limits on exemptions in equality law. Paragraph 1 of schedule 3 exempts Parliament. Paragraph 2 exempts legislation. The functions of Parliament, including the Committee and the process of preparing, making or considering a Bill, whether of this Parliament, the Scottish Parliament or the National Assembly for Wales, are not bound by the strictures of equality law.
The exemptions may make perfect sense, but I wait to hear from the Minister what they protect against and their purpose. If their purpose is to stop people making mischief, bringing endless legal claims and tying up Parliament in endless litigation, that would be a bad thing. However, I note that the exemptions are total, broad and unrestricted. They do not contain the sort of hoops through which people have to leap if they want to obtain the benefit of other exemptions for any of the other strands.
New clause 15 would have a similar effect, and I must admit that I have some sympathy for it. However, we seem to be inconsistent in allowing continuing discrimination by some organisations, but not others. Paragraphs 2 and 3 of schedule 6 exempt political appointments, honours and peerages. Again, I understand why the Government want to maintain the freedom to make important appointments without being tied up in litigation over allegations of discrimination. The Prime Minister may not be able to get rid of a Cabinet Minister simply because he had clever lawyers who claimed that his dismissal was related to a protected ground. Furthermore, I observe that religious groups and others feel the same way about appointing youth workers and pastoral workers.
Amendments 39 to 41 draw attention to the exemptions. Amendment 50 would exempt the two Parliaments and the Welsh Assembly from the public sector equality duty. It is a broad exemption. I shall not say anything more about it, but I think that I have made my point. I could have tabled probing amendments to paragraphs 21 and 22 of the schedule, which exempt insurance, but we accept that the insurance industry needs some protection. The exemptions are pretty comprehensive. I understand the need for that, although like other exemptions, the details and the limits might be subject to debate. I hope that the Minister will give us a full explanation and justification for each of the exemptions, because the subject of exemptions is an important one.
There are a lot of exemptions, and some of them are very broad. Therefore, we must not say to the Churchesas the Solicitor-General appeared to suggest when we heard evidence from themthat there is something unusual or shocking about wanting exemptions, or something wrong with wanting to ensure that those exemptions are wide enough. We go into great detail in protecting the insurance industry, sport and so on, so surely we can give our attention to protecting everybodys freedom.
The danger the Government face is that by allowing broad exemptions for their own activities, but insisting that exemptions for religious groups, and others, should be as narrow as possible, people will conclude that there is one rule for the Government and another rule for everybody else.

Evan Harris: The hon. Gentleman raises a fair point that these are very wide exemptions and he seeks, by probing their elimination, to question the justification for the Whip. I think that he is right to do that. The critique is that the exemptions are too wide, not that the restrictions on them that apply to other organisations, such as religious organisations, are too narrow. When Liberty urged the Committee to probe the Government on those points, I do not think that it had in mind that the religious exemption for discrimination should be widened. I think it had in mind my interpretation, which is that the exemptions are too wide.
I look first at the application of paragraph 1 of schedule 3, which is about section 27 and regards discrimination where services apply and the provision of those services to a function of Parliament and
a function exercisable in connection with proceedings in Parliament.
It goes on to explain:
Sub-paragraph (1) does not permit anything to be done in contravention of that section to or in relation to an individual unless it is done by or in pursuance of a resolution or other deliberation of either House or of a Committee of either House.
The amendment would omit the whole of paragraph 1 and that could be quite tricky.
What examples do the Government seek to reserve other than the right of Parliament to legislate? Of course we recognise that we cannot have legislation in normal statute that prevents Parliament from legislating as it wishes. However, in terms of the way that the House functions, is it right for there to be unjustified discrimination? Surely if something happens in the House in order to make it run efficiently, it would be possible to justify that discrimination.
For example, if it was felt necessary to make people who wanted to secure a seat in the Chamber for the rest of the day attend prayers, even if they did not wish to participate in them, that could be objectively justified. Excluding the way that Parliament works from the law, prevents anyone from challenging that provision and requiring an objective justification for the fact that in order to retain a seatunless they can fill in a pink card to demonstrate that they have been on a Select Committee or another Committee, and could not be there for prayersthey must attend prayers. At least people are not forced to go along with the prayers if they are not of that religion, but I do not think that there are many places where adults are expected to sit through prayers against their will in order to secure a service. It is not a big deal, and I have not sought to highlight it as such, but it is an example of where if such a measure can be justified, it should be justified.
The issue goes even wider. There are some local councils that seek to introduce prayers, for example, as part of their proceedings. A parish councillor in Devon, Councillor Boughton, was referred by his council for disciplinary procedures for refusing to participate in prayers, even though he was not religious. He preferred to listen to his iPod during prayers and the other councillors felt that was a breach of his conduct. People might feel that that was wrong, but if people elected to public office are expected to do something and do not want to because they do not share that religiousor any otherview, they should not, then, encounter barriers that prevent their full participation.
The amendment to schedule 6 is also quite apposite because the exemption is extremely wide and it is not clear why. I hope the Minister will explain the justification for such a wide exemption. To say that life peerages and honours do not have to be objectively justified when they might appear to be discriminatory seems peculiar given that that is a route in this country to status, access to power andarguablyto some special privileges. It is reasonable, then, to ask for them to be subject to the need for justification if questioned, rather than having a carte blanche exemption. The hon. Gentleman has done a service on behalf of Liberty in identifying how wide these exemptions are.

Vera Baird: Amendment 39 would remove the exception for parliamentary functions from the prohibition on discriminating against harassing and victimising a person when exercising a public functionit would make Parliament liable for all of that.
The exception is designed to protect Parliaments historic privilege to regulate its own internal affairs. Both Houses of Parliament are exempt in their entiretytotallyfrom the prohibitions on discriminating in the exercise of a public function. The exclusion from coverage here is much more tightly drawn than the hon. Gentleman has been perfectly happy to live with until now. The exclusion will effectively apply only where the action in question has been the subject of some form of deliberation of either House. It is about parliamentary functions and is not a blanket exception. It does not, for instance, allow the parliamentary restaurant or shop to discriminate on the basis of race, religion, belief, and so on. Nor can someone be refused access to the House of Parliament on the basis of any protected strand; it is limited and applies only where needed. I can see no valid reason for removing it. We have all lived happily until now with a far wider exception.

Evan Harris: The Minister has been helpful in clarifying that this is a narrowing and that is welcome. However, she is happy, but it is not necessarily the life of the third party ever to be happy in this place. [Hon. Members: Ah!] Thank you. I am grateful for voice of sympathy, which Hansard will record.
When it came to the parliamentary pension scheme, which is otherwise over-generous, it retainedas with other public sector pension schemesdiscrimination in survivors benefits for same-sex couples. It was a struggle for me, and others, some years ago, to get that to change. I do not see why things like thatwhich were, I fear, the subject of a resolutionshould not have even had to have regard to discrimination thinking. It pre-dated rules on civil partnerships, and so on. However, had we had those rules, it would not have had to abide by them and that would have been a loss. I hope the Minister recognises that it has some relevance, even where it is the subject of deliberation.

Vera Baird: The position, however, is much better under the Bill than it has been historically and I have said all I can about that.
Amendment 40 would remove the exception about preparing, making, approving or considering primary legislation and some forms of secondary legislation. The exception goes hand in hand with parliamentary functions, as it is about protecting the constitutional principle of sovereignty. It is in current legislation, and it is important because it allows legislation to be debated and made, which, for entirely legitimate reasons, may have a differential impact on people with particular protected characteristics. If it was not there, we would have difficulty legislating to introduce new maternity benefits, for example. However, that does not mean that public bodies do not have to consider the differential impact on various groups before legislation is introduced. But I am sure that that point is pretty plain.
Amendment 41 would bring within the meaning of personal or public office holders, political office holders and persons who are either being considered for, or have already been awarded honours or dignities by the Crown, giving them protection under clauses 46 to 48 of the Bill.
Schedule 6 defines what constitutes a personal or public office under the Bill, largely replicating existing law and provides that political office holders and recipients of dignities and honours conferred by the Crown are not personal or public office holders under the Bill. The kinds of posts listed, such as offices of the House held by Members of it, are not the kinds for which discrimination law would be an appropriate remedy. They are political matters, which are subject to political concerns and can be raised in a political setting if there is any unfairness, rather than in an employment tribunal, which would be an odd place to raise them.
People considered for, or awarded honours or dignities may be protected from discrimination, victimisation and harassment through the provisions applicable to the performance of public functions under part 3 of the Bill. But the conferral of honours and dignities does not amount to employment, and any claim in respect of that is properly addressed by the county courts, as is already the case under the majority of existing discrimination legislation. We think that it is right to maintainbut we have also tried to harmonisethe existing approach, and I hope that we have succeeded.
Amendment 50 would remove the exception for the House of Commons, the House of Lords, the Scottish Parliament and the National Assembly for Wales from the requirements of the equality duty. It is the same pointit is important, in constitutional terms, for our legislative bodies to be free to debate matters and pass laws without being obliged to give due regard to the need to advance equality and foster good relations every minute of the process. I think the General Synod is also a legislative body, but the amendment stops short of removing the exception for that.
I also point out that the House of Commons has not only an equality scheme, but an equality and diversity schemesince that is a major interest of the hon. Member for Glasgow, Easton which we will be consulting shortly. This establishment and the House of Lords take equality and diversity seriously, but their constitutional function needs to be protected in the way that I have I said.

John Mason: I thank the Minister for explaining her position in some detail, and I appreciate the logic for the different exemptions. Some of the public think that Parliament has got a little bit out of touch with reality in recent months, and that is something that we will probably have to come back to at some stage. Parliament has a constitutional role, but the idea that we might move, at some stage, towards a written constitution, and Parliament might be slightly constrained in what it can do, might not altogether be a bad thing. None the less, with the reassurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lynne Featherstone: I beg to move amendment 162, in schedule 3, page 151, line 14, at end insert
to the extent that the discrimination is a proportionate means of achieving a legitimate aim..

This amendment imposes the legitimate aim test when armed forces want to treat a person detrimentally.
The amendment would impose a legitimate aim test when the armed forces wish to treat a person detrimentally. There are situations where people will not be able to undertake their duties, in cases of disability, for example, which would affect combat effectiveness and is relevant. Not every disability would be prohibitive, perhaps. Obviously flying or driving would be problematic for someone with impaired sight, but there may be disabilities that would not automatically be listed in that category that would result in the opportunity to take part in a suitable form of combat being denied. Perhaps it would be better to have a legitimate aim test that could assess, on a case by case basis, the appropriateness or not of discrimination and whether it is justifiable.
The Equality and Human Rights Commission suggested that their broad position on all exceptions is that they would have to be fully compliant with European law and therefore should be subject to the requirement of being a proportionate means of achieving a legitimate aim.

Mark Harper: I can see what the hon. Lady is saying. There are two things that I would say to that. First, I do not think it is right to assume that just because clause 27(6) would not apply to the armed forces that that automatically means they are going to discriminate. The reason for the exemption reflects who we want to make the decisions, whether it is the chiefs of staff or the Secretary of State for Defence or whether it is a judge.
With the recent case of applying human rights legislation to the battlefield we have seen the great difficulties that may be caused to commanders on the front line when their very difficult decisions are second-guessed by a judge. That really is the argument; it is not about whether the armed forces discriminate or not, it is about the decisions they make and who ultimately makes them. This is not about the armed forces wanting to discriminate, but about how they make judgements on combat effectiveness.
The schedule does not cover all strands of discrimination, only the four that can reasonably be seen to have some bearing on whether an individual would affect combat effectiveness. It is about whether we want those decisions ultimately to be taken by Ministers, who are accountable to this House, or judges. That is the question.

Lynne Featherstone: I understand the point the hon. Gentleman is making, but those four strandsage, disability, gender reassignment and sexmight be the basis for discrimination. If the commander in the battlefield were to make those decisions, they might be based on such discrimination and not totally on combat effectiveness. That is the reason the EHRC wants to introduce a legitimate aim test to this schedule. Were there to be a commander in the field who was biased in any way, for example on gender reassignmenta woman who has become a man totallyhow would it be determined whether that decision was genuinely taken on combat effectiveness or a longstanding bias? Not necessarily at that moment, but later in the court.

Mark Harper: The problem is that as soon as the exemption is removed, all commanders in the field making decisions, whether they are making them for good reasons or bad, are potentially subject to being dragged into a court and being second-guessed by a judge sitting in London, even though those decisions might be made in very difficult conditions. That is the problem; it is not about whether those decisions are right or wrong. I am simply arguing that the armed forces have policies to encourage, for example, those with disabilitythe area I know bestto the extent possible, but those decision are ultimately best taken by the Secretary of State for Defence, who is accountable to this House, rather than giving them to a judge.

Lynne Featherstone: I understand the point, but I think we have to disagree on it. Those decisions should be subject to a higher order than that moment on the battlefield. Ultimately, it may be a right decision, but in terms of law and protection it is totally in order to expect there to be a legitimate aim if discrimination is to be justified. That is what this amendment seeks to do.

Evan Harris: The argument put by the hon. Member for Forest of Dean is one that was used a lot by the armed forces when resisting the end of the ban on gay and lesbian soldiers serving in the forces. They said it was a matter for commanders or that it was about combat effectiveness, but they never provided evidence of that. The argument was used that this should not be dealt with in the courtsthat it must be a matter for the Army itself. I think they were wrong and they recognised they were wrong on that ground, and in the end the European Court forced Parliament to act. The point my hon. Friend is making is analogous to thatit may not ever not be justified, but a justification ought to be given at some point.

Lynne Featherstone: I want to ask the Minister whether she feels the commission has a very good point in introducing a legitimate aim test, because, as my hon. Friend helpfully said, this is where we were not that long ago in relation to gay men and lesbians in the armed forces, and that now seems like something from the distant past. Perhaps this move forwardthe introduction of the legitimate aim testwill also take its place in the advancement of discrimination law.

Mark Harper: I just want to respond to the intervention of the hon. Member for Oxford, West and Abingdon on the hon. Member for Hornsey and Wood Green. The hon. Gentleman is quite right: that issue was in my mind when I looked at this exemption, and in particular at the four protected characteristics that are allowed to be used. I asked myself, Could any of those, to my mind, legitimately affect the combat effectiveness of the armed forces? I was thinking of the protected characteristics of sexual orientation when I read that, thinking back to that case.
I would not be so open as just to say, Oh, we should leave this up to the Army or one of the other branches. I absolutely think that Ministers should probe and take responsibility for such questions, and they should challenge military commanders on whether something genuinely does affect combat effectiveness. It is one of the benefits of this placeit has schemes such as the armed forces parliamentary scheme, in which a number of Members take partthat we get the opportunity to visit operational theatres to talk not just to senior Army, Navy and Air Force officers, but to the men and women in the front line, as well as those back at home.
Such things keep us well informed and enable us to challenge existing practice and question whether something is justified. However, when it comes to the defence of our country, for which the Government have to take responsibility, such things should probably be left to those responsible for that task in Parliament. If they fail to do that or do it badlyas we can perhaps agree they did in the case of sexual orientationthey should be held to account politically. I am just always very nervous about allowing judges to make decisions that may damage our armed forces operational effectiveness.
I know the Government have great concerns about the recent ruling on human rights law applying to the battlefield, and they are thinking about whether to appeal that case. This is simply what I say. It is not that I support the armed forces discriminating; it is about who the decision makers should be on these particular grounds. There are other exemptions in this schedulefor example, the security services, the Secret Intelligence Service, GCHQ and parts of the armed forces. They are exempted from clause 27 completely for that very reason: not because they should be able to go on discriminating, but because we think it proper that those decisions should be made by Ministers, who are responsible to this House for the security of our nation. That is the proper place for those decisions to be made as far as the armed forces are concerned.

Vera Baird: If I may say so, the hon. Gentleman has made some good points about who should take the decisions, and about not mixing the need for a limited exception for this purpose with its abuse, as exemplified by the cases that subsequently secured equality for people with different sexual orientations and enabled them to be fully involved in the military.
This measure is not intended to be a licence to discriminate. I do not know if this factor will help, but we are bound by European Community law to reassess periodically occupations from which women are excluded, for instance, to decide whether there is any justification, in the light of social development, for maintaining the exclusion, and we must notify the EC of such reassessments. The Ministry of Defence is assessing its policy governing women serving in close combat roles; on 26 May it announced that it would be examining whether it is still appropriate to exclude women from such roles.
The position is therefore not static, and it is not a repetition of something that has, I accept, appeared on the face of it to give rise to discrimination in the past. It is a fairly narrowly framed exception that exists, as the hon. Member for Forest of Dean said, to enable generals to take decisions when they need to, rather than being second-guessed by judges. None the less, the test is set in terms of the necessity to ensure the armed forces combat effectiveness. We cannot exclude the possibility that at some point, a woman or a person who has had gender reassignment may well bring a case to court, so that they can secure their entitlement more quickly than the reviews allow for in terms of combat effectiveness.
Let us not muddle something that appears at the moment still to be necessary to guard the efficacy of our armed forces with any licence to discriminate, nor impute to the armed forces any intention to do so. I back that up by saying that the issues are kept under review. For the time being, we invite the hon. Member for Hornsey and Wood Green to withdraw her amendment.

Lynne Featherstone: I have listened carefully to the Minister, and I am reassured inasmuch as the situation is not static. Things do move on and change. Women may bring cases if they want to serve on the front line. It will be interesting to see whether a general who makes such a decision does so on the right grounds or the wrong ones. That will eventually be tested, but for the time being, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lynne Featherstone: I beg to move amendment 159, in schedule 3, page 153, line 9, at end insert
(1A) In assessing risk in sub-paragraph (1)(a) a blood service cannot make an assumption of risk that relies on all people of a protected characteristic sharing the same risk..

This amendment makes clear that blood services cannot use blanket assessments of risk based on people of a protected characteristic, such as their sexual orientation, sharing the same level of risk.
I am sure that everyone in this room believes that protecting the safety of the blood supply must be the first and most important concern in terms of who should be able to give blood and who should not. The problem is that at present, we assess who may or may not give blood on a precautionary basis. We are allowed to consider the collective risk of a group, rather than the behaviour of an individual. The Bills purpose is to protect groups of people from both direct and indirect discrimination. I believe that the ban on gay people giving blood, for example, needs to come under scrutiny so that we can understand better whether that discrimination contravenes the purpose and meaning of the Bill.
Personally, I cannot see how a blanket ban can not be discriminatory. If I were a gay man in a monogamous civil partnership and wanted to give blood, I would not be allowed to. If I were a sexually active straight man, I would. Surely there is a case for the safety of the blood supplys being based on an individuals behaviour and the consequential risk of that behaviour, rather than eliminating a whole group.
I was talking only yesterday to a gay man who had gone to give blood when he was younger, but only after he had given blood was he shown the form asking whether he was a homosexual and whether he had had sex. He said that he was so humiliated and upset that he lied. It is appalling for someone to be put in that position.
The amendment tests the very core of the meaning of discrimination. If we are to blanket-ban blood donation by gay men, as is currently the case, we are inevitably discriminating against one of the protected characteristics sexual orientation. As I understand it, there are 450 rules guiding donor selection and there are two levels of protection. One is in the first category, which is the selection of safe donors; the second is the testing of the donations.
Regarding gay men, the leaflet explaining why certain groups are not acceptable for donation refers to specific behavioursrather than the fact of being gaythat place men at an increased risk of HIV infection. I could go into what they are, but I would rather not. We are told that research shows that allowing gay men, as a group, to donate blood would increase the risk of infection of the blood supply. However, the problem is that that refers to the totality of risk in a group that includes people who are not careful, who have had many sexual encounters and who bring the risk level up in the blood collected from that group. There is no distinction within that group between men who behave in that fashion and men who are monogamous and careful.
One great iniquity is that a heterosexual person who consistently puts themselves at risk of exposure to HIV, for example, is not given a lifetime ban on giving blood, whereas a gay man who has had protected sex just once is given a lifetime ban. After two years of review, Stonewall has now changed its position, having given the greatest care to issues associated with risk. Risk is a key issue for blood supply, but Stonewall has come to the genuine belief that exclusion should be expressed in terms only of risky behaviours, not sexual orientation.
The national health service says that sexual behaviour is its reason for exclusion, not sexual orientation. Nevertheless, only gay men who are virgins are allowed to give blood. Surely it is time to introduce a more sophisticated model and change the current restrictions to reflect behavioural risk on an individual basis, rather than having a blanket ban on a group. That might give better protection because there is relatively little investigation into, or inhibition on, those who are not homosexual.
Current practices in Spain, Italy, Australia and New Zealand place no lifetime ban on gay men. I believe we should follow their lead. The Anthony Nolan Trust has recently lifted its ban on bone marrow donations by gay men. The Bill offers an opportunity to begin that process of change from blanket bans to a system based only on the risk that an individuals behaviour poses. I would welcome the Ministers views on what I have said.

Vera Baird: Essentially, the amendment is not necessary, because the Bill prohibits blood services from excluding people who share a characteristic, unless there is evidence
from a source on which it is reasonable to rely
that donation presents a risk to the public or to the individual donor. The Bill also requires that refusal, even if grounded on that evidence, to be reasonable.
The issue is not just about gay people. Blood services sometimes need to exclude all people who share a protected characteristic from giving blood. For example, the EU requires blood services to refuse donations from people who are HIV-positive, and HIV-positive is a disability in the Bill. Therefore, it is not just about gay men. However, an issue about them has been raised. Let me see if I can deal with it as well as possible.
In the explanatory statement for the amendment, the hon. Lady suggests that sexual orientation is an example of a protected characteristic that would be covered by the amendment. However, I am told that blood services do not ask questions about sexual orientationthere has never been a blanket ban on people who share a protected characteristic, either of homosexuality or bisexuality. Lesbian and bisexual women, who share the characteristic, are not banned from donating on the grounds of their sexual orientation, nor are gay or bisexual men who, as she put it, are virgins, who have not had sex with another man. Excluding everyone who identifies as gay would be unnecessary, and it would be unlawful, so it is not a blanket ban in that sense. There is no evidence of people presenting a risk just because they are gay.
The hon. Lady raised the issue in a bit of detail, so let me deal with it in detail, in all fairness to her. The policy, which is to exclude men who have had sex with men from donating, is in place because the blood services have an ethical duty of care towards recipients for the sole purpose of protecting public health by minimising the risk of transmission of HIV in particular. My information is that men who have had sex with men are at higher risk of carrying such viruses. A review of the evidence on risk-based sexual behaviour will begin in July.
Men having safer sex with men was touched on by the hon. Lady. While safer sex through the use of condoms reduces the transmission of infection, it does not eliminate the risk. Men who have sex with men are found to be disproportionately represented among the small number of HIV-positive donations identified. Epidemiological evidence in the UK also shows that there has been a significant increase in other sexually transmitted infections that can be blood-borne, such as hepatitis B and syphilis, among men who have sex with men.
The hon. Ladys answer to thatI understand whywould be to assess each donors risk individually. However, blood services advise that there would be a large number of practical problems. For example, it would not be feasible in a blood donation session to take a detailed sexual history from an individualapparently 7,000 people per day, which is excellent, give blood, so that would be impractical. The blood services need to use broad categorisation for donor selection.
The hon. Lady referred to other countries having reversed their policies.

Lynne Featherstone: I understand the practical difficulties, but they are not that difficult. I do not see why they cannot apply to anyones behaviour, in terms of how many partners one has had in the past year and whether one uses protection. I do not understand why that would be such an impossibility, given that one has to fill out a form anyway and it is simply a matter of which questions are on the form.

Vera Baird: That is what the blood services say and I accept what they say. To take a detailed sexual history to decide the risk of 7,000 people a day, one could not simply ask one sector; one would have to ask everyone, to be clear. That seems to be pretty well a definition of impossibility.
The hon. Lady talked about other countries, so let me nod in the direction of that as well. A review of our policy of refusing donations on the ground of sexual behaviour is planned to start in July. The scientific advisory committee that advises the UK Health Departments on blood safety will begin a review of the risks associated with sexual behaviour. The fact that the review exists shows that there is already a rigorous process in place to make sure that donation criteria are based on current and reliable evidence. It will welcome engagement with the public, with stakeholders and Members of Parliament. In October, there will be a public meeting about the review, and that would be a more appropriate forum for hon. Members to raise their concerns.
In particular, the amendment will not do. The need for it is perhaps usurped by the presence of that review and, as I described, the issue is wider. It is necessary, for instance, to be able to refuse donations from people who are HIV-positive because of the obvious risk, and they are disabled, so we cannot allow the amendment.

Lynne Featherstone: I have listened to the Minister, and of course there are other categories and groups that pose a risk, and HIV is one of those. Much of the HIV in the haemophilia community, and the risk posed by the blood supply, which has been huge, was actually caused by the Governments unwillingness to move fast enough to protect them. That is very unfortunate. We can all balance risk in this area. I will withdraw my amendment and contribute to the review, but the issue needs to go further.
I do not totally accept what the National Blood Service says about how difficult it is to take a detailed sexual history. People lie, as I described in respect of the gentleman I was talking to yesterday, because of the situation that they are in. Regardless of background, a form is filled in. It does not take long to fill in a form with ones sexual history. It is not too detailed; it is not a list of the names of everyone a person has slept with over a lifetime. But it considers the risk posed by the number of people and whether they have practised safe sex.
As the hon. Member for Glasgow, East reminds me, having given blood the first time and qualified as a blood donor, most donors are repeat donors and therefore it would not be a case of completing a form every single time, other than updating the sexual history. It is not a long process and donors have to do it, anyway. I simply say that it is an issue that needs much further debate. I am not wholly persuaded by the Minister, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Evan Harris: I beg to move amendment 160, in schedule 3, page 154, line 10, leave out from following to end of line 11.

This amendment redrafts the exception in the application of disability discrimination to immigration matters.

Ann Winterton: With this it will be convenient to discuss the following:
Amendment 101, in schedule 3, page 154, line 11, leave out for the public good and insert to protect public health.
Amendment 102, in schedule 3, page 154, line 13, leave out or remain in.
Amendment 103, in schedule 3, page 154, line 14, leave out or remain in.
Amendment 104, in schedule 3, page 154, line 15, leave out or remain in.
Amendment 105, in schedule 3, page 154, line 16, leave out or remain in.
Amendment 161, in schedule 3, page 154, line 22, at end insert
(5) Section 27 does not apply in relation to sub-paragraphs (2) to (4) only to the extent that any treatment, or a failure to comply with a duty, are a proportionate means of achieving a legitimate aim.
(6) Regulations may make provision for purposes of sub-paragraph (5) as to circumstances in which treatment, or a failure to comply with a duty, is to be taken to be justified, to the extent that those regulations are a proportionate means of achieving a legitimate aim.

This amendment redrafts the exception in the application of disability discrimination to immigration matters.
Amendment 106, in schedule 3, page 155, leave out lines 14 to 26.

Evan Harris: I rise to speak to the two amendments tabled in my name and that of my hon. Friend the Member for Hornsey and Wood Green. Amendments 160 and 161 need to be considered together. I also support the amendments tabled by the hon. Member for Glasgow, East and will speak briefly to them. I want to take the opportunity, if I may, to deal with something in paragraph 17 of the schedule, which comes under the same partimmigrationto avoid having to return to it in the stand part debate, because it generally covers the same ground.
This is an important issue because it has been raised not only in the context of the Bill but, as the Solicitor-General will know, in the context of the UN convention on the rights of persons with disabilities and the Governments proposed reservation in that area, which was subject to two reports by the Joint Committee on Human Rights, of which I am a member and to which I will briefly refer.
Paragraph 16 states that the bar on discrimination in relation to the provision of services does not apply to disability discrimination when that relates to matters of immigration, and the justification is that the ground for so doingdoing one of the things listed in sub-paragraph (3)is necessary for the public good. It is questionable whether that is a stricter provision than originally existed, and certainly the briefing from the EHRC confirms our belief that it goes further than the previous provision. It is important to observe that the explanatory notes state that the measure provides an exemption
from the prohibition on discriminating against a person when providing a service or exercising a public function because they have a disability, in relation to certain immigration decisions, including making a decision not to allow someone to enter the country
and so on. However, the explanatory notes go on to argue:
An express exception was not previously needed since the Disability Discrimination Act 1995 did not prohibit direct discrimination in the provision of service or exercise of a public function, and because disability related discrimination, which did apply to the provision of services or exercise of a public function, could be justified if it was necessary not to endanger the health or safety of any person.
First, that in itself is a different justification from the one provided in the schedule, which is
necessary for the public good
rather than
necessary not to endanger the health or safety of another person.
Secondly, the contention in the explanatory notes is controversialthe EHRC certainly questions it. The EHRCs position, as we knowI am not the only one with this briefingis that all exceptions must be fully compliant with EU law and should be subject to the requirement of being a
proportionate means of achieving a legitimate aim.
That would be better if further qualified by adding appropriate and necessary means of achieving a legitimate aim. The EHRC rightly argues that it is essential that discrimination is reasonable only as far as it permits public authorities and the private sector to discriminate where it is justified.
The EHRC takes issue with the explanation in the explanatory notes that the measure is not more restrictive. As the notes acknowledge, disability-related discrimination, as opposed to direct discrimination, was always covered by the DDA 1995 in the context of exercising public functions, including immigration functions, as can be see by section 21D of the DDA.
If we look at section 21D, we find that there was not the same sort of blanket exclusion that essentially exists now. Subsection (3) gives the criteria under which treatment or a failure to comply with a duty are justified and relates to conditions in subsection (4), which are
that the treatment, or non-compliance with the duty, is necessary in order not to endanger the health or safety of any person...that the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment, or non-compliance with the duty, is reasonable in the particular case...that, in the case of treatment mentioned in subsection (1), treating the disabled person equally favourably would in the particular case involve substantial extra costs and, having regard to resources, the extra costs in that particular case would be too great
and one other. Subsection (5) states:
Treatment, or a failure to comply with a duty, is justified under this subsection if the acts of the public authority which give rise to the treatment or failure are a proportionate means of achieving a legitimate aim.
The provision in section 21D of the DDA is not present in this provision.
The EHRC points out that the exception in paragraph 16(3) extends beyond justified discrimination and excludes all immigration decisions. That is also a cause for concern, because it could allow unjustified and negative stereotyping of conditions such as HIV. There is no requirement of proportionality, so it is not clear what would fall under the provision of
necessary in the public good.
The National AIDS Trust has contacted us and the commission to express that concern, and other countries have such unjustified, stigmatising and caricaturing bans on people with HIV, which they say are necessary in the public good but which clearly, from research and study, cannot be justified.
I should like to deal briefly with the relationship between the measure and the Governments proposed reservation from the UN convention on the rights of persons with disabilities. Paragraphs 58 to 71 of the 12th report of Session 2008-09 of the Joint Committee on Human Rights, which is its second report on the matter, deal with that relationship. Essentially, the reservation is described in the same terms as in the Equality Bill, so at least the Government are consistent on the two measures regarding that reservation.
The Joint Committee on Human Rights does not believe that the proposed reservation is appropriate and thinks that the Government have not provided an adequate explanation of why they believe it to be necessary. The Committees view is that there is nothing in the convention or in domestic law that justifies a reservation of the breadth proposed and it stated:
this reservation could disapply the Convention in its entirety in so far as its protection might relate to people subject to immigration control.
These provisions are no less narrow.
Why cannot the Government use a different formulation for the test to be met, such as that set out in amendment 161? I do not claim that the drafting is absolutely right, but it gives a flavour of what we are looking for, stating:
Section 27 does not apply in relation to sub-paragraphs (2) to (4) only to the extent that any treatment, or a failure to comply with a duty, are a proportionate means of achieving a legitimate aim.
I think that proportionate means is possibly the wrong way of describing appropriate and necessary means, but we will leave that aside. The amendment contains a regulation-making power that would make provision for the purposes of sub-paragraph (5) to set out the
circumstances in which treatment, or a failure to comply with a duty, is to be taken to be justified
and explain why those are necessary and proportionate means.
Finally, I want to deal with the example given in the explanatory notes relating to TB. Paragraph 668 of the explanatory notes gives an example:
A person who arrived at a British airport with TB could be refused entry if this was considered necessary to protect the health of the general public.
As I understand it, the Government have a scheme that operates when visas are sought in some countriesnot all countries; it is not uniformthat means that a visa might not be provided to someone unless they have passed screening for TB. I have seen no evidence to suggest that that is scientifically justified, which, I suspect, would be a requirement even under the Governments provision.
The Minister might not be equipped with this information now, but I would be grateful if she agreed to ask her officials to check with the Department of Health about the evidence base for that example. It would be illuminating for us to know whether the Government feel that their test requires scientific or research-based support for an intervention, particularly one as significant as requiring a specific screening test or treatment for a condition. Although it may appear strange, I have seen no evidence to suggest that screening people for TB before entry would affect TB in this country. TB in this country is generally due to re-emergence in people who have been here for many years rather than new immigrants. That is certainly the case regarding transmission to close family members. This is a significant issue and I hope that the Government can provide an explanation or justification.
I support the amendment tabled by the hon. Member for Glasgow, East to paragraph 18 of the schedule. It seems wrong to have an absolute right to directly discriminate on the basis of religion or belief in matters of immigration. A person may have viewsjihadist views, for examplethat might mean that the Government are right not to allow them to enter this country. However, that is a manifestation of someones religion, and such action can be justified under indirect discrimination legislation. I would argue, as would some mainstream religions, that it is not a defining cause of religion or belief. Everything that the Government seek to achieve in paragraph 18 could be done without having such a broad exemption for religion or belief. Such measures can be justified, and the Government are right to do that where necessary.
Paragraph 17 deals with a long-standing provision that covers an exemption in respect of race discrimination and immigration matters in relation to nationality and ethnic or national origins, not colour.
I want to remind the Minister of what happened at Prague airport when UK immigration officials were engaged in a practice that was found eventually to be unlawful. It is a pity that the matter took so long that it had to go to the law courts. People who looked like Gypsies were being stopped deliberately and not allowed to travel to this country. They were subjected to questioning and testing by Government directive. Such action should give us cause to consider whether such a broad exemption is appropriate or should be qualified in order to prevent what may have been well-meaning directives given to immigration officials, but which were in effect found to be unlawful, even though the measure is an extension of a current exemption. I hope that the Committee will look kindly on all the amendments in the group because they have much merit.

Diane Abbott: The afternoon wears on, but I want to say a few words on the exemptionlong standing, I knowof immigration services from the requirements on nationality and ethnic origin under the Bill. It may be long standing, but that does not necessarily mean that it is correct. When I first came to the House 22 years ago, I made a speech on immigration and I am regularly among the top 10 MPs who write to the immigration and nationality directorate on such matters. Over that time, I have dealt with literally thousands of immigration and nationality cases on behalf of my constituents and sometimes on behalf of others when their MP would not help them. I have observed that one problem with immigration and nationality legislation is not so much that it is consciously racist, but that it is consciously chaotic and consciously reacts to media panic. Twenty-odd years ago, East African Asians from Kenya who came here were to bring about the end of civilisation as we know it. More recently, it has been Romanian ladies in headscarves and Polish plumbers.
The random nature of immigration legislation could be properly mitigated if it did not have such blanket exemptions. Nothing brings our immigration process into such disrepute as the notion that it bears more heavily on people because of skin colour than otherwise, whether it is true or not. Nothing causes more pain to my constituents than the very real state of affairs whereby people from the Commonwealth, who may have all sorts of cultural links, are often treated less favourably in immigration matters than people of a different skin colour who are not from the Commonwealth. I am not saying that there might not be grounds for some sort of exemption, but such a broad exemption helps our immigration legislation to be more chaotic and unfair than it might be otherwise. I hope that, during our proceedings in Committee or even on Report, we can return to the subject and deal with it at slightly greater length.

John Mason: I wish to speak first to amendments 101 to 105. Other Committee members have expressed concern about the wide scope of paragraph 16 of the schedule on immigration. It means effectively that discrimination is allowed against a person by refusing entry into the UK if the person has a disability. Similarly, a person could be discriminated against by being required to leave the UK because of a disability. There could be an exemption for public health reasons, which many of us would accept. I am grateful to Liberty for making that point. The hon. Member for Oxford, West and Abingdon referred to the example whereby a person arriving at an airport with TB could be refused entry. A lot of us would say that that was fair enough, but an exemption for public good is much wider than is needed to prevent such a case. The fact that it could be abused is already causing worry.
Similarly, a non-citizen developing cancer could be expelled from the UK for the public good, no matter how long that person had been resident here, to avoid giving NHS treatment and save money. A family with a child with a disability could be refused entry on the basis that the child, over time, might cost the public health system. The amendments should meet the Governments objectives of allowing entry to be refused to protect the health of the general public, while limiting it so that people with non-contagious disabilities are not unfairly refused entry. It would also mean that a person who is already resident in the UK would not be forced to leave on developing a disability.

Evan Harris: I would not want the hon. Gentleman to put the wrong impression about tuberculosis on the record. TB is not contagious as people would understand it in that it is easily spread. It is wrong to think of people, even those with active TB, as being a real danger to people in the same way that someone with severe acute respiratory syndrome or some form of flu is. There is little evidence that people who come into this country create a health hazard to the general public in spreading TB. It is a problem, and a far greater problem in the countries of origin than it is for us. I know that that is not his intention, and I do not think that that is a good example in the explanatory notes or for anyone to refer to.

John Mason: I completely accept that point because it is extremely valid, but I was quoting it because it was the example in the explanatory notes, although I do not think it is particularly good. However, I expect that, if we are talking about contagious diseases such as smallpox or swine flu, of which Scotland seems to have its fair share, the case would apply.

Emily Thornberry: I want to enlighten the Committee with my personal experience. My brother returned from Africa with TB. He was not diagnosed for some time, until part of his throat disappeared and he had large holes in his lungs. I assure hon. Members that the medical teams around us were very concerned that our entire family might have it. We, and those who have been close to him, all had to go off to a TB clinic to be checked out. The medical profession take it seriously, and therefore, my impression is that TB is, or seems to be contagious. People can catch it quite easily, so there must be some form of control.

John Mason: We will leave other people to decide the exact position of TB; I think all the points are valid. The question is whether we need a complete exemption for the public good, or whether it would be enough to have an exemption for public health. That is my key point in amendments 101 to 105.
Amendment 106, which mentions religion and beliefI am glad to say that this time, I can speak on behalf of the partyseems to be too wide an exemption. The point has already been touched on by the hon. Member for Oxford, West and Abingdon: it would allow unfair discrimination. Paragraph 18(2) and (3) would allow discrimination in immigration cases, in that a person can be refused entry to or be expelled from the UK on the basis of religion or belief if that is considered conducive to the public good.
We all accept that there will be occasions when a person is excluded from the UK on the basis of public goodfor example, if there is evidence that the person may incite people to commit violence. That would not be discriminatory because the exclusion is due to the persons actual or suspected behaviour. Surely it is sufficient to know that a person is suspected of holding such extreme and violent views, and their religion is largely irrelevant. I do not understand why religion or belief is included here.

Vera Baird: I will start with the race exception, which my hon. Friend the Member for Hackney, North and Stoke Newington referred to. Indeed, it replicates an existing exception introduced in 2000. Many immigration laws and policies require differential treatment on grounds of nationality. It goes to the heart of the UK immigration system. Different visa requirements need to apply to people from different countries, depending on a variety of historical, political and diplomatic reasons. Immigration officers may want to give extra scrutiny to entrants from particular nationalities if there has been evidence of immigration abuse by people of those nationalities. The first one, I think, makes the point. Different visa requirements would not be possible if there was no exemptionthat is the key. I do not accept that it is broadly set out and I will say why not in a minute.
Going through some of the specific problems that other members of the Committee have raised, let us look at disability. The hon. Member for Oxford, West and Abingdon asked about TB. The policy on TB, which is encapsulated by reference to that disease as an example in the explanatory notes, is that it is a serious public health threat, as my hon. Friend the Member for Islington, South and Finsbury said. Of the 8,500 TB cases reported in the UK in 2007, 72 per cent. were in people who were born outside the UK and 7.5 per cent. of people with TB were resistant to at least one first-line drug, with that being far more common in people born outside the UK. That is the kind of evidence that will inform future consideration.

Evan Harris: Now is not necessarily the time to have this discussion, but I have heard those points made before, and they disguise my point. Those people may have been born outside the UK, but the figures show that they do not get the exacerbation of the disease in the first year that they enter. The figures show that it is far more common for TB to arise in people who were born outside the UK but who have been here for years. It may be reactivated by a tripas a UK citizen, so they are not subject to immigration controlto the subcontinent. That is why there has been confusion over the policy justification for this.

Vera Baird: I cannot comment on that, but there is obvious justification for a policy on TB, bearing in mind the figures that I have just given, when we consider people coming into the country with TB. I think that the hon. Gentleman is talking about people who have been in the country and are going to be removed because of that disease.
Let me deal with HIV and then I will come to the principles behind this issue. I suppose that the hon. Gentleman was saying that we would use the measure to refuse permission to people with HIV/AIDS, but prospective migrants are not asked whether they have HIV or asked to undergo HIV testing. The Governments policy is that HIV testing is available in the UK voluntarily, and that nobody who comes here is compelled to have a test, so it will not work in that way.

Evan Harris: Let me say that there was no implication that the Government had a policy of requiring HIV tests, and that I strongly support the UK Governments approach to this issue. However, some Governments who are close allies of the UK do that, and who knows what a future Government may do? The Government should make it clear in this legislation, and Parliament should make it clear, that that would not be acceptable. This is not a fantasy, because we know that other countries, including our allies, do it. That was the basis on which I made the point, and I did not seek to criticise the Governments existing policy.

Vera Baird: I am relieved to hear that, because that was how it sounded. There is no such policy, and we legislate for what will be lawful from now on, whoever is in government. I seek to persuade the Committee that the exemption is vital if we are properly to police our borders. It is not, as the hon. Gentleman said, a blanket ban, or even a wide ban.
The hon. Gentleman mentioned the DDA and quoted extensively from it or from the notes. Until now, a specific disability exception for immigration functions has not been necessary, because the DDA has justifications, some of which he quoted, by which public authorities can treat a disabled person less favourably, for a reason relating to their disability, without that amounting to discrimination. One example would be if that different treatment were considered necessary so as not to endanger the health and safety of anyone else. However, those justifications have now gone, because they were in the DDA, but are not in this Bill. Consequently, we have included the exception to retain the status quo.
Let me go through the amendments in turn. Amendments 101 to 105, 160 and 161 all attempt to change the scope of the disability exception, which allows an immigration authority to refuse someone entry to the UK, or permission to remain, on the basis that it is
necessary for the public good.
Amendment 106 would remove one part of the Religion or belief exceptions.
Amendment 101 would replace the
necessary for the public good
justification in the Bill with the justification that the action in question is necessary to protect public health. It is important to ensure the proper protection of public health, but it is not exclusively about that. For instance, the immigration authorities might need to exclude someone who has a particular mental or other condition who represents a risk to public safety, rather than to public health specifically. Immigration authorities need to be able to take account of other factors than public health when making decisions about whether to give leave to enter or remain. The test is realistic and narrowly based, but it appropriately allows broader conditions than a one-dimensional test of public health.
Amendments 160 and 161 go together. Amendment 160 would remove the current justification for using the exception, namely when it is necessary for the public good, and amendment 161 would replace that with a standard, objective justification test that would mean that the exception could be used only when it was a proportionate means of achieving a legitimate aim. However it is couchedwhether in European or English languagethat is the test, is it not?
We do not think that the amendments are necessary and I hope that the hon. Gentleman is reassured. Under current drafting, action can be taken only if it is necessary for the public good. When a court, for instance, considers whether it is necessary, it will obviously have to consider whether it is a proportionate means of achieving a legitimate aim. All actions taken by immigration officials are in accordance with regulations and guidance issued by the Secretary of State, who is accountable to Parliament, and all policies and decisions taken in accordance with them are subject to the Human Rights Act.
Although that route appears somewhat circuitous, the hon. Gentleman can none the less be assured that the question of proportionality to achieving a legitimate end is integral to the test that the court would apply. In addition, guidance and instructions will of course be issued to immigration staff. They are already in the public domain, so the amendment would not provide additional transparency, if that was a consideration. We have limited the exception to what is necessary for the public good so that differential treatment of disabled people cannot be applied unless it can be justified in those terms.
Amendments 102 to 105 would mean that immigration authorities could not rely on the exception in relation to decisions taken about people if they are already in the country. The basis for exclusion would be available only to prevent a person from entering the country, not to exclude them. That is obviously unworkable and would limit severely the Border Agencys ability to deliver its immigration and public protection duty to protect public health and public safety.

John Mason: I appreciate that the Solicitor-General has mentioned public health and public safety before. Would she be more open to using those two terms rather than the wider public good?

Vera Baird: No. It is a mistake in legislation. The definition is very narrow. In discussing guidance and the application of the Human Rights Act, I have made it plain that further tests apply to that narrow definition through the process of the court, which is well known. It is a narrow definition in itself, and it is even narrower because those who implement it know that the courts will deal with it with regard to the Human Rights Act and the EU.
It is better, in our submission, to put it in those terms, narrow as they are, because legislating for the future, as the hon. Gentleman said in a different context, is difficult. One must include sufficient flexibility for some unforeseen event that would not involve public health or public safety but would involve the public good.
We would not want to create a potential conflict between the Equality Bill and immigration legislation, which is why we have the exceptions, but I emphasise again that all immigration decisions will have to be taken in accordance with the Human Rights Act in any event.
Amendment 106 would remove one part of the religion or belief exception for the immigration authorities, removing their power to decide not to allow someone to enter or remain, despite the fact that it was conducive to the public good, where religion or belief is a factor. Some individuals religious beliefs are so extreme that it would not be desirable for them to enter or remain, as they could cause or incite harm to others. It is therefore necessary to allow the immigration authorities to exclude what are sometimes called preachers of hate where that is considered to be in the interests of community cohesion, which is in the public good, and to exclude others who could operate against the system.
The exception is not new. The hon. Gentleman has talked about the DDA in a different context, but the exception has been in existence since the Equality Act 2006. In the three years since it has been introduced, we have not seen any evidence to suggest that the immigration authorities have used the exception incorrectly. The exception is not a blank cheque. It is very specific and requires behaviour to be justified.
In addition, the Border Agencys use of the exceptions is subject to monitoring by the chief inspector. In our earlier discussions, the hon. Gentleman set great store on having inspectorates check that the Bills obligations were being followed and that the exceptions were not too wide. The chief inspector of the Border Agency has a statutory duty to monitor and report on the efficiency and effectiveness of UKBA, which specifically includes considering and making recommendations about the agencys compliance with discrimination law in the exercise of its functions.
I hope that I have persuaded the hon. Members for Hornsey and Wood Green and for Glasgow, East to not press their amendments.

Diane Abbott: On exemptions from immigration and nationality legislation, the Minister said, with something of a flourish which belies her history as one of our top advocates, that without the exemptions, differential visa arrangements between different countries would not be possible. But that is partly my point. The problem with differential visa regimes is that they do not necessarily target the people that they try to target. Jamaicas visa regime is designed to keep out Jamaicas criminals and undesirables, but those criminals and undesirables continue to travel between London, New York and Kingston unimpeded, while Jamaican academics and so on who come here on holiday get caught up in the visa regime.
If the exemptions were not so wide, we would have to think harder about what the visa regimes are supposed to achieve and whether that could be done by other methods. The exemptions often seem arbitrary. I travelled to Bolivia with a parliamentary delegation earlier this year, and they were upset that they are now subject to a visa regime while Brazil, which sends more people to this country and has more issues surrounding criminality, is not. If the exemptions were not so wide, we would have to think harder about what we are trying to do with some aspects of immigration and nationality legislation.

Evan Harris: There are three things to respond to. First, on TB, I congratulate the Ministers team on having the figures ready, but they do not prove the point. They do not address the point that people who come here and are subject to immigration control are generally not the same people who may have been born abroad and who develop TB. There is also no evidence from any research to suggest that applying immigration control in this way would have any impact on the number of people contracting TB in this country. The example is flawed and the policy is flawed. If I am wrong and receive a letter citing some peer-reviewed research from anywhere in the world that is similar to this country that shows that the policy works, I will place a retraction of my view in the public domain. I have not yet seen such evidence as yet. The point about using TB as an example is that anything that is more contagious would probably not count as a disability according to the 12-month rule, but I understand why people cast around for chronic diseases.
I accept the Ministers comments that we may need to look more widely than public healthpeople with a mental health condition, for exampleon public safety. In so far as the amendment seems to focus only on public health, I accept her point. However, she did not explain to my satisfaction why the legislation does not specify the normal language of the directive in respect of an objective reasonableness test, which is a proportionate means of achieving a legitimate aim. Instead, she said that people need to rely on the Human Rights Act, but in a sense people could ultimately rely on that Act for much of what this legislation is intended to address. It is not quite so useful, as I understand it, with regard to the scope of the powers of people assisting those seeking help, such as the Equality and Human Rights Commission, on whether they can take human rights cases to the same extent as they can take equality cases, but I am not an expert in the area. In addition, the whole point of equality legislation is not to have to rely on the fallback position of human rights.
The Minister maintained that the courts, when interpreting necessary, would include a proportionality test, but as we discussed earlier the language of proportionality itself includes the term appropriate and necessary, so for something to be necessary, the courts would have to demonstrate that it was necessary in part, and that is not entirely satisfactory. I see no good reason why the Government cannot use the language they have used elsewhere to ensure that, if they want the exemption, people can challenge it with the same language they challenge other exemptions in the rest of the Bill. There seems to be one rule for the Government and another for everyone else. My amendment is not focused enough to deal with that point. Otherwise, I would be tempted to press it to a division, but it is something we will come back to.
The Ministers response to the amendment tabled by the hon. Member for Glasgow, East, which I strongly support, also did not deal with the point. He set out clearly how a bar on someone with unacceptable views could be based on those viewsincitement to violence, for examplebut if the worry was that it would then be argued that those views were a consequence of religious belief, which I can understand, given the number of religious extremists with unacceptable view sand behaviour in many religions, that would be indirect discrimination and the Government could justify it. It is wrong that there should be a complete exemption on the basis of religion or belief, which goes to the heart of article 9 of the European convention on human rights, which sets out the freedom to hold a religion or belief, regardless of its manifestations. I note that the hon. Gentleman does not intend to press the amendment, but if that subject is dealt with later in our considerations, I hope that he will swing behind an attempt to appropriately narrow that. Having made those points, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sitting suspended.

On resuming

Schedule 3 agreed to.

Clause 30

Application of this Part

Mark Harper: I beg to move amendment 11, in clause 30, page 22, line 6, leave out paragraph (a).

Ann Winterton: With this it will be convenient to discuss new clause 7Reasonable adjustments for babies and infants
(1) The Secretary of State may by regulations make provision as to a duty on providers of public services, where a physical feature puts a baby or infant aged under 5 at a substantial disadvantage in relation to a relevant matter in comparison with persons of other ages, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(2) A reference in this section to a physical feature is a reference to
(a) a feature arising from the design or construction of a building;
(b) a feature of an approach to, exit from or access to a building;
(c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises or a vehicle;
(d) a feature arising from the design of a vehicle;
(e) a feature of an exit from or access to a vehicle;
(f) any other physical element or quality.
(3) Any reference in this section to chattels is to be read, in relation to Scotland, as a reference to moveable property..

Mark Harper: It is always good to start promptlyit has all sorts of advantages. This simple amendment would leave out paragraph (a) and is nothing more than a probing amendment tabled because, having read the section and realised that the part on premises does not apply to the protected characteristics of age and marriage and civil partnership, I could not think of good reasons why we would want to exclude age. I have therefore tabled an amendment to leave out that paragraph simply to provoke a discussion and give the Minister the opportunity to set out the Governments thinking about why age should be excluded from the section. That is the purpose of the amendment. I look forward to what the Minister has to say.

John Mason: The purpose of new clause 7 is to require public service providers to make reasonable adjustments to physical features to make their services and facilities accessible to babies and young children. The DDA introduced the concept of reasonable adjustments into UK legislation. The duty to make reasonable adjustments means that providers of services are required to make changes called reasonable adjustments, so that disabled people can use the services more easily. The duty has led to improvements in relation to accessibility for disabled people and others, so it might now be a good time to extend the protection specifically for the benefit of babies and young children.
The new clause suggests reasonable adjustments for under-fives in relation to the physical features of public transport and public premises. For public service providers, that would simply be an extension of the existing duty relating to disability. Older people with accessibility needs may well qualify as disabled under the DDA and enjoy reasonable adjustment rights under that legislation. Babies and young children, and their families or carers, are clearly not disabled, but they suffer similar limitations on their access to many services.
There is currently a lack of safe and available seating for infants and young children and inadequate space for pushchairs on public transport. Constituents frequently come to me and complain that, because there was already a pram on a bus, a second pram was unable to be taken on. Adults travelling with young children often experience problems getting on and off public transport and feel that they and their child are frequently treated less favourably than others.
A survey found that parents in the UK are put off using public transport by poor access, sometimes inconsiderate staff and a lack of suitable facilities. Some 72 per cent. of the 500 mothers who were surveyed thought that public transport was difficult for mothers and babies to use, 60 per cent. found that bus drivers were unhelpful, and only 12 per cent. had a fully buggy-accessible train or underground station near them.
Research by the then Equal Opportunities Commission, which was conducted in 2006, concluded that the designs of buses
take insufficient consideration of the difficulties experienced by women who are encumbered by accompanying children.
I assume that that could relate to men as well. The research recommended that a balance should be sought between providing adequate seating capacity and providing enough space for shopping bags, pushchairs, wheelchairs and mobility scooters. The new clause, for which I am grateful to Young Equals, would allow the Secretary of State, by regulation, to require transport providers to make reasonable adjustments to ensure the safety and comfort of very young passengers.
Moving on to public buildings and spaces, babies and young children experience similar difficulties when trying to access and use public buildings with their parents and carers. Cardiff county council carried out a detailed inquiry into how family friendly its city is. The conclusion was that people experienced
considerable problems in finding stores or buildings with baby changing facilities...buggy access into and around shops, restaurants and other buildings was also very difficult and in some places impossible.
The new clause would allow for a reasonable adjustments duty in respect of public buildings to be placed on public service providers to ensure access for families with babies and children under the age of five. I believe that a similar duty exists in some regions of Germany; for example, Baden-WĂ1/4rttemberg requires a barrier-free environment for facilities used by small children, people with disabilities and the elderly.

Lynne Featherstone: I strongly support new clause 7. When I was on the London assembly, I was for four years the chairman of transport and for one year the deputy chairman. One of the key issues was the design of buses and their inaccessibility, particularly for mothers with buggies. It is difficult enough to get out the door with a young baby, let alone find oneself at a bus stop when a bus driver drives up and refuses access. I have seen mothers with a double-buggy or, if there is already a buggy on the bus, with a single buggy refused access. A reasonable adjustment should be made, so I support the new clause.

Vera Baird: Amendment 11 and new clause 7 both raise the issue of age in relation to premises. Let me put on the record, in response to the hon. Member for Forest of Dean, that our reason for excluding premises from the ban on age discrimination is that we want to tackle harmful discrimination only, as I have been saying throughout. During preparation for the Bill and in the consultation, we looked for evidence of discrimination because of age in the field of housing but did not find sufficient evidence to justify applying the provisions on premises to age.
On the other hand, there are many examples of housing provision exclusively for people in a particular age range, which we would probably regard as desirable and would want to preserve. Age limits may be imposed to meet the needs of disadvantaged groups or to cater for the preferences of individuals who simply wish to live exclusively with people of a similar age. If we included age in the ban, those age limits would have to be objectively justified. Since we did not find evidence of harm from the exclusion, we did not think that that was necessary. We simply do not want to interfere unnecessarily with the private arrangements that people make. In a nutshell, that is why we have not included that strand in the clause.
If that is satisfactory, I shall turn to new clause 7, which is about making premises and public transport accessible and safe for babies and young children by means of a reasonable adjustment, which is a concept that was introduced in the Disability Discrimination Act 1995 to ensure that disabled people get increased access to services, among other things. It necessarily entails a measure of positive discrimination for that protected group. It is not permissible in relation to the other protected groups because it is unjustifiable and unduly burdensome, but it is absolutely necessary to ensure that disabled people have access to all that they are entitled to.
I recognise that parents are keen that buildings and transport should be child-friendly, but we are probably stretching equality legislation beyond what is appropriate. Instead, such things should be approached in a more targeted way. A substantial disadvantage test does not really fit babies and children. Obviously, they are disadvantaged by their size and the fact that they are babies, but, by and large, they will be with parents or carers. Comparing them with persons of other ages does not work and would not achieve the aim underlying the new clause.
In addition, by way of reassurance, legislation already exists to deal with some of the issues that the new clause seeks to address: for example, part M of schedule 1 of the Building Regulations 2000 ensures that people, regardless of age, sex or disability, should be able to gain access to and within buildings, and use their facilities. The approved guidance document to the regulations sets out considerations such as ensuring entrances are wide enough to allow unrestricted access to parents with pushchairs; incorporating separate facilities for baby changing, or including changing tables in toilets; and providing lower handrails on stairs and lower urinals for children in male washrooms.
On public transport, in particular buses and trains, an extensive regulatory framework currently addresses comfort, safety and access for disabled passengers. Many of the adjustments made for themfor example, ramp access and widening of doorwayswill also benefit passengers who have young children in prams.
On rail services where wheelchair-accessible toilets are fitted, baby-changing facilities are also required and EU regulations protect the rights of people with reduced mobility. That would include pregnant women and people travelling by air with children and babies. Similarly, EC proposals, although that is all they are at the moment, about travelling by sea and on buses and coaches have been published. There is also, yet to come, a public sector equality duty, which encourages public bodies to take account of the particular needs of people of different ages when planning, designing and delivering services. The needs of women in relation to pregnancy and maternity are particularly covered, as is breastfeeding. Therefore, parents will also see improvements as a consequence of the Bill.
On reasonable adjustments, we think that it is not an appropriate means of tackling this problem. It is being tackled in a number of specific ways and it is far better to do it in that targeted fashion than incorporate it into discrimination law. We therefore respectfully ask the hon. Member for Glasgow, East not to press new clause 7, and I hope that I have answered the points that the hon. Member for Forest of Dean raised in tabling his amendment.

Mark Harper: The amendment was probing the Governments thinking about why the age provisions had been excluded. The Minister outlined that very well and reiterated that there was no harm being done that needed to be fixed. Indeed, there were lots of positive things about premises, to do with age, that we would want to protect. In view of her assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lynne Featherstone: I beg to move amendment 163, in clause 30, page 22, line 7, leave out paragraph (b).

This amendment extends protection against discrimination because someone is married or in a civil partnership as it relates to premises.
This is another probing amendment. It seeks to extend protection against discrimination because someone is married, or in a civil partnership as it relates to premises. The Minister will recognise that we have been here before, but I would like to probe her because premises is one of those areas where I might have expected some evidence of discrimination against, for example, someone in a civil partnership. I would be interested to hear from her whether there is any evidence of that. If there is, I do not think that they should be excluded, because people can be prejudiced. I await her comments.

Vera Baird: Put simply, there just is not any evidence.

Lynne Featherstone: That is hard to believe, but I am encouraged to hear that there is not any evidence. If there is not any discrimination, the Government, rightly, do not need those protected characteristics in the Bill. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 ordered to stand part of the Bill.

Clauses 31 to 33 ordered to stand part of the Bill.

Clause 34

Leasehold and commonhold premises and common parts

Lynne Featherstone: I beg to move amendment 164, in clause 34, page 25, line 27, leave out subsection (8).

This amendment removes the powers of Government to remove specific types of premises from the application of this protection.
We have some concerns that the provision will make the protection of premises open to the whims of the Government of the day. If a Government were to decide that they disagreed with protection in all its forms in all these premises, they could remove all types of proposed buildings and premises from the application of the protection. I am seeking reassurance from the Minister that she is not as worried about this as I am.

Vera Baird: I assure the hon. Lady that we have no sinister reason to exclude any particular premises. Property and housing legislation is complex and the provisions in the clause are novel. They will take a bit of time to bed in and we will monitor how they work in practice. In time, there may be aspects of common parts, for instance, that mean that we have to exclude certain things from the provisions, so we have given ourselves the power to do so. There is nothing sinister at all in this. Of course, I cannot predict whether future Governments will have sinister motives, but it seems to us an important power to have in reserve.

Lynne Featherstone: I thank the Minister. She alluded to my concern in her last sentence. Given that the future is unknown, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34 ordered to stand part of the Bill.

Clause 35 ordered to stand part of the Bill.

Schedule 4

Premises: reasonable adjustments

Amendment made: 61, in schedule 4, page 166, line 14, leave out 5(4)(b) and insert 5(4)(c)..(The Solicitor-General.)

This amendment would correct a minor drafting error

Schedule 4, as amended, agreed to.

Schedule 5 agreed to.

Clause 36

Employees and applicants

Lynne Featherstone: I beg to move amendment 165, in clause 36, page 26, line 22, at end insert
(1A) An employer (A) discriminates against a person (B) in the arrangements in subsection (1)(a) if A fails to take reasonable steps to ensure that
(a) the selection for interview is carried out on an anonymous basis, or
(b) the person selecting for interview does not know the gender, race, sexual orientation, age or marital status of B or whether B has a disability..

This amendment protects job applicants from subliminal discrimination arising from information assumed from an applicants name. It also prevents information being made available to people short-listing that reveals whether an applicant has protected characteristic.
On Second Reading, I floated the idea of anonymous applications for jobs. For members of the Committee who were not present for that debate, I will explain the premise. The idea began when I had two interns with the surnames Hussein and Patel. They told me that they had applied for hundreds of jobs and had not been accepted for interview for any. It is not too hard to conclude that that had something to do with their surnames and recognition of their ethnicity. They were both bright, wonderful interns who went on to far better things than helping me.
Much of the Bill is about the discrimination that is found once one is in work. This proposal takes a step back and considers why people might be excluded at the written application stage. People could be subliminally excluded by a human resources department or an individual who is reading a CV, without there being any intention to discriminate. In a name, one can recognise ethnicity, gender and age. We would not wish any of those things to be barriers at that first stage. Once people get through to interview all will be revealed, but at that stage personality can mitigate any subliminal bias.
When children take exams, we do a similar thing to eliminate any bias from the examiner or markergive children a candidate number for their GCSE, AS-level and A-level papers. There is no reason why written application forms could not use something like the national insurance number so that unconscious discards did not happen to the same degree.
I did not realise that floating this idea on Second Reading would create such a hoo-hah in the personnel world. I have been supported by two big employer organisations, one of which is the Chartered Institute of Personnel and Development thinks that the idea has great merit. Although businesses often moan that equality can be expensive, this measure could eliminate some unconscious discrimination without costing anything.
The other side of the personnel world is very concerned and upset. In a Personnel Todaypoll, 73 per cent. of the 300 respondents did not like the idea, but I have a view that the personnel industry might not like an idea that could mean some of its control being removed, as it would see that as a challenge to its expertise. However, organisations that represent personnel and employment agencies, are keen because this is a simple measure. I am not sure why there was such a hoo-hah: it seems like a sensible suggestion and would be minimal in terms of effort and expenditure. I therefore hope to find some support for it.

Vera Baird: This proposal was raised on Second reading by the hon. Lady and we promised to consider it. She obviously wants to make employers take reasonable steps not to acquire information in the early part of recruitment exercises that would identify applicants as having specified protected characteristics. The purpose of that would be to avert subliminal discrimination. Many small and medium-sized businesses might struggle to put the necessary provisions in place, as they do not have dedicated HR staff and it might be difficult.

Lynne Featherstone: I ran this as an experiment in my own office, as we are effectively small businesses. It really put no strain whatever on us.

Vera Baird: I would find it difficult in my office to firewall myself off so that I did not know anything at all about the details of a person who had presumably been offered an interview by my personal assistant. I do not think it would be so straightforward for small businesses to do it.
Some HR managers have responded to the hon. Lady raising the matter on Second Reading, with most being against. They oppose the amendment on grounds includingprobably not justifiablythat it presupposes that recruitment processes are inherently discriminatory. However, they also say that the proposal is unworkable in relation to the obligations on reasonable adjustment. The Chartered Institute of Personnel and Development appears to support the amendment, but has said that it would rather see it promoted as good practice, not legislation.

Lynne Featherstone: There was no inference that personnel or human resources are discriminatory. This is all about unconscious barriers. I am aware that the chartered institute thinks it should be voluntarythat is a fall-back position, because it would promote best practicebut I was hoping for a stronger recommendation, just because I genuinely think it is a good idea.

Vera Baird: I had no notion of thinking that the hon. Lady intended to allege discrimination, which is why I said that it is perhaps not the objection from human resources managers, of which there have been manifold, that we ought to take most seriously. However, they do talk about the proposal being simply unworkable, and it is important not to suggest that an organisation supports legislative proposals when in fact it is saying that this may be a good idea, although it thinks it should be not in legislation, but only good-practice guidance.

John Mason: The Solicitor-General used the word unworkable. I want to raise the practicalities of this. My gut feeling is that I like the idea, and it might rule out some problems, but I am thinking, too, of some jobs where the number of people who apply is quite limited. For example, all the applicants might be known because they are well-known in the industry or whatever. I wonder how the practicalities would work out.

Vera Baird: That is a valid point and perhaps what we ought to do is experiment, which is what we are seeking to do in that the Department for Work and Pensions has carried out a CV research exercise. Two carefully matched applications or CVs with names recognised as having different ethnicities have been submitted in response to the same advertised vacancies to see whether employers make different decisions depending on the names in the CVs. That research will be reported in the summerI am sorry that I do not have an answer now, having tantalisingly mentioned the subject.
The initial indications are that there is significant discrimination, so more work needs to be done to find an appropriate solution. I imagine that members of the Committee know that an early-day motion on discrimination against people suffering from HIV or mental illness has been tabled, calling for the Bill to restrict the use of pre-employment questionnaires.
I think we will return to this issue, but if the hon. Lady is reassured that we are looking at it in the careful way that I set out and is happy that we should wait for the results, I encourage her to withdraw the amendment. Although she has talked about anonymity only, does not her amendment also suggest that the person selecting for interview should not
know the gender, race, sexual orientation, age or marital status
at all? That would be a tall order. There would be no name or gender, so who could the interviewee be? If the hon. Lady is thinking about names, she has a point, which we should look at when we have the research.

Lynne Featherstone: Yes, the amendment is essentially about names. I am heartened by what the Minister has said. The issue needs investigation. If the work being done by the DWP demonstrates significant discrimination at the application stage, she will want to introduce either recommendations for best practice or guidance.
Following the Ministers reassurance, I am more than happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

John Penrose: I beg to move amendment 207, in clause 36, page 26, line 22, at end insert
(1A) An employer must not ask for details of an applicants health or disabilities before an offer of employment to which subsection (1) applies has been made except in so far as necessary to make reasonable adjustments to the recruitment process..

Ann Winterton: With this it will be convenient to discuss the following: amendment 208, in clause 36, page 26, line 34, at end insert
(3A) An employer must not ask for details of an applicants health or disabilities before an offer to which subsection (3) applies has been made except in so far as necessary to make reasonable adjustments to the selection process..
Amendment 209, in clause 52, page 40, line 27, at end insert
(1A) An employment service-provider must not ask for details of an applicants health or disabilities before an offer to which subsection (1) applies has been made except in so far as necessary to make reasonable adjustments to the selection process..
Amendment 210, in clause 52, page 41, line 5, at end insert
(4A) An employment service-provider must not ask for details of an applicants health or disabilities before an offer to which subsection (4) applies has been made except in so far as necessary to make reasonable adjustments to the selection process..
Amendment 211, in clause 54, page 42, line 20, at end insert
(1A) A trade organisation must not ask for details of an applicants health or disabilities before an offer of membership to which subsection (1) applies has been made except in so far as necessary to make reasonable adjustments to the selection process..
Amendment 212, in clause 54, page 42, line 34, at end insert
(4A) A trade organisation must not ask for details of an applicants health or disabilities before an offer of membership to which subsection (4) applies has been made except in so far as necessary to make reasonable adjustments to the selection process..

John Penrose: The amendments are similar to but more narrow than the previous group. They would limit an employers ability to produce a pre-offer questionnairein other words, to get information from job applicants about their health or disabilities in advance of the interview or of making a decision. That particularly involves illnesses or disabilities that would not be visible during the interview, such as mental illness, HIV and so forth, the aim being to ensure that such issues are not a factor in a decision on a job offer.
The details of any illness or disability would not be revealed until after an offer was made. At that point, it would become much harder for a potential employer to back out having made the offer. The discussion would be more likely to be framed in such terms as, Okay, what reasonable adjustments will you require and how can we ensure that we are making them? Therefore, the application and job selection process would be more likely to be fair and equitable.
Some of the amendments acknowledge that it may sometimes be necessary to ask in advance of an interview whether a job applicant has special requirements to gain access to the interview. Such information may be required on that basis, but that is a much narrower point and a practical requirement rather than anything else.
The provisions have support from a wide range of external organisations. The submission from the Royal College of Psychiatrists says:
Evidence tells us that people with mental health problems face serious discrimination in the employment process, notably through the attitude of employers.
The Disability Charities Consortium says:
A snapshot poll by Mind conducted in October 2008 found that 1 in 4 people had job offers withdrawn after disclosing a mental health problem, despite this being illegal under the Disability Discrimination Act. There is also evidence that disability and sickness-related information do not predict a persons level of absence in work.
As a final example, Rethink says:
Fewer than four in 10 employers would consider employing someone with a history of mental health problems, compared to more than six in 10 for candidates with physical disability.
The important thing is to ensure that a structure is in place that encourages employers not to make decisions based on inadequate information or fear, which are often what underlie discrimination, rather than malice. Where malice exists, that must clearly be dealt with as well, but the important thing is to ensure that employers are given every opportunity to do the right thing, and the amendments aim to create that kind of environment. I hope, therefore, that the Minister will be able to offer us some reassurance that the Government are favourably disposed to them, or at least willing to consider them, given the breadth of support outside this place for such measures.

Vera Baird: I am glad that the amendments have been tabled. Like amendment 165, which we have dealt with, they arise from concerns about the potential use of information gathered during recruitment to sift out candidates, in this case because of disability. I understand those concerns. The amendments would restrict the disability-related information that employers, service providers, employment service providers and trade organisations could gather before a job, service or membership decision. They would be allowed to gather only what information they needed to enable reasonable adjustments to be made.
We have general worries about imposing mandatory restrictions by legislation in that way. There are also specific worries about the practicalities of the proposals, such as what sorts of inquiry the employer could make without receiving information that could be used to discriminate and how the employer would know where the boundary lies. Of course, if a person believes that information that they have given about their disability at an interview has been used to discriminate against them, they can already take action. There is no difficulty about doing so. I wonder slightly what the amendments would add, but I see that the hon. Gentleman is about to tell me.

John Penrose: I am sure that the Minister will be far more aware than the rest of us that the number of successful applications to courts to bring the kind of action that she is describing is tremendously low. It is much more difficult to deal with pre-employment discrimination than discrimination after getting a job. I am sure that she is aware of the figures showing that it is much rarer for someone to do so successfully at the moment. Anyway, surely we ought to be trying to create an environment that raises the chances of success by allowing employers to do the right thing as well as threatening to beat them with a big stick, particularly because the provisions that she described that allow potential cases to be brought have been in place for a long time, and most of the available evidence shows that they are not having the effect that I am sure we would all want.

Vera Baird: I agree completely that it is a cumbersome, difficult and personally trying process to take an action in respect of disability discrimination, and that it is not easy to prove that it was the disability that played either a partial or an exclusive role in the lack of recruitment. The position is not straightforward, so it is all the better if we can devise some mechanism to ensure that discrimination cannot take place because there is no information on which it can be based.
Although I know less about it than about the strand of work that I referred to, I understand that the DWP is considering the matter as well. There is, of course, nothing to prevent firms from making their own efforts to reduce the chance of such discrimination. We are worried about putting it in legislation rather than putting good guidance in place when we have more evidence. Although we invite the hon. Gentleman to withdraw the amendmentwe would resist itwe will consider it, because it is a difficult issue, and I am glad that it has been raised.

Mark Harper: There is broad support for the proposal. In our private discussions with business organisations, whether representing small or large businesses, and in the evidence that they gave during our evidence sessions, they were all relaxed about that approach. No issues were raised at all. Also, it works very well in the United States.
Given what the Minister said about the extensive research that the DWP is doing to see whether names give rise to discrimination, will she, at a suitable opportunityperhaps she can write to usanswer this question? If the DWP is either currently doing or would commit to doing similar research, and if as a result there were some clear evidence that satisfies the Departmentalthough the representations that we have had have been fairly unanimouswill the Minister be willing to consider tabling amendments on Report or in the other place? If that is the case, we will be suitably reassured.

Vera Baird: Another point that I should makein fact, there seem to be twois that we would delay the time in which the question of reasonable adjustments needs to be addressed. That might make difficulties for an employer. The hon. Gentleman is rightthere are outlawing provisions for pre-employment inquiries in the USbut we do not know whether that element of protection is used. Nor do we know whether it has had any effect on the recruitment of disabled people.
That is the crux of the issue. If we ban the introduction of such information at that early stage, will we encourage more recruitment of disabled people? We do not know that. However, I am engaged with the issue and am impressed by the arguments. Therefore, I urge the hon. Member for Weston-super-Mare to withdraw his amendment and to let us consider the issue. I will either write or speak directly to him about the matter in Committee.

John Penrose: I cannot pretend that we are overwhelmed by the Ministers response, but we recognise the good will with which she is trying to approach the issue. We will wait and see what is in any letter or communication that she writes to us. We are concerned that there may not be enough in that, and we will look to press the issue at a later stage if necessary. However, on the basis that she has promised to write to us and to consider the matter further, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 ordered to stand part of the Bill.

Clause 37 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned.(Lyn Brown.)

Adjourned till Tuesday 23 June at half-past Ten oclock.